Tomorrow night (details here), I’m going to be on a panel with Gary Gates, Chad Griffin and Patrick Guerrero sponsored by the Williams Institute, discussing the impact of the election on lgbt rights. At the federal level, I see four clusters of issues as the most important questions likely to arise while Obama remains President. Although there are many more possibilities, I think of these as the ones I would most like to check off as having been accomplished when we reach 2016:
Let’s hear it for jobs – Last year, POTUS blinked when he could have issued an executive order locking in anti-discrimination protections in the workplace for all employees of companies that contract with the government. Now the election is over. Dear POTUS: You won; the business interests guy didn’t. I understand that the fiscal cliff looms, and that you need support for maintaining a social safety net and progressive tax rates. Nonetheless, soon if not instantly, an executive order would be good policy and good politics. The likelihood of enacting ENDA when Republicans control the House is, at best, murky. The Executive Order is the only clear way forward on workplace protections.
Administering the end of DoMA – I am quite optimistic that the Supreme Court will invalidate Section 3 of DoMA. Assuming that happens, federal agencies would then be free to recognize same-sex marriages for purposes of federal benefits (Social Security, immigration, federal employee benefits) along with some penalties (tax, depending on the circumstances). The huge question will then become: will the federal government recognize marriages that were legal where performed but not where the spouses live? The majority of same-sex marriages are between persons who do not live in the jurisdiction where the marriage occurs. (All those destination weddings -) How this question is answered will determine the full impact of ending DoMA.
Implementing health reform – In the health insurance exchanges that are scheduled to take effect January 1, 2014, will same-sex partners count as family for coverage purposes? What about unmarried heterosexual couples who have registered as domestic partners in Hawaii, Illinois, Nevada, New York City, DC and other jurisdictions that allow different-sex couples to use the registration system? Will transgender-specific health care needs be included in the standard benefits package? The nation’s access to health care is about to be transformed, and among the thousands of questions that need answering for that process to be completed will be some of the most important issues for the lgbt community.
The Supreme Court - Three gay-related cases, including the challenge to Prop 8, are on the Court’s conference calendar next Tuesday, so we may know just before or after Thanksgiving which cases will be argued this term. I’m not worried about the administration’s role in these cases; we already know that the Justice Department will argue against the constitutionality of DoMA and for heightened scrutiny.
But I am concerned that more confirmation battles in the next four years seem likely. From an op-ed during the campaign by Harvard Law Prof Noah Feldman:
[F]our justices are 74 or older, meaning they will be at least 78 by the end of the term. Justice Ruth Bader Ginsburg is already 79, with Justices Antonin Scalia and Anthony Kennedy not far behind at 76 and Justice Stephen Breyer at 74. One hopes of course they all live long lives, but the notion that all four will still be willing and able to serve the next four years is preposterous. Several will retire and be replaced — and even one replacement could fundamentally change the configuration of the court…
[Imagine that] Obama is re-elected and either Scalia or Kennedy is replaced by a relatively more liberal justice. That would in turn create incentives for Ginsburg and Breyer to retire, which would allow the possibility of a five-justice liberal majority in which Justice Sonia Sotomayor, now 58, would be the eldest.
If Justice Kennedy retires or if any of the four most reliably conservative Justices leaves the bench for any reason, there will be Armageddon in the Senate. If that happens on Obama’s watch, he has to stick to his strength of playing the long game, and call in every chit he has to win the battle. Nothing he could do in the next four years will be more important that his impact on the Court.