President Barack Obama signed a memorandum June 17 that he said "paves the way for long overdue progress in our nation's pursuit of equality" for LGBT civil-service employees.
The "Presidential Memorandum on Federal Benefits and Non-Discrimination" does not spell out any specific benefits to be granted to federal civil service employees. But the Obama administration's top-ranking openly gay appointee, John Berry, said it would allow civil-service employees to receive long-term care insurance for their domestic partners and take sick leave to care for those partners, as well as any children they share with those partners.
The entire four-minute-long Oval Office ceremony can be viewed at www.WhiteHouse.gov . Surrounded by Vice President Joe Biden; U.S. Reps. Barney Frank and Tammy Baldwin; and about a dozen other activists and openly gay appointees, a somber-looking Obama called the signing an "historic step" that addresses "some of the wrongs" LGBT civil-service employees face.
But, he added, "under current law, we cannot provide same-sex couples with the full range of benefits enjoyed by heterosexual married couples."
"I think we all have to acknowledge this is only one step," said Obama. "Among the steps we have not yet taken is to repeal the Defense of Marriage Act. I believe it's discriminatory, I think it interferes with states' rights, and we will work with Congress to overturn it."
He also expressed his "proud" support for a bill introduced by Rep. Baldwin—the Domestic Partners Benefits and Obligations Act—that seeks to provide to federal employees with "domestic partners" the same benefits made available to federal employees with married spouses.
Baldwin told MSNBC's Rachel Maddow Wednesday night that she agrees Obama went "as far as he could go" without an act of Congress. And she said she thinks her bill to provide equal rights to LGBT federal employees "really got a boost by his strong endorsement today."
Office of Personnel Management ( OPM ) Director Berry characterized the memorandum as an "important step" in a journey to eventually provide equal rights in a whole host of areas.
Family Equality Council Executive Director Jennifer Chrisler, who attended the ceremony, issued a statement saying, "President Obama's actions will help thousands of committed, same-sex couples working for the federal government ensure their families' security."
"While today's memorandum falls short, it does move us forward," said Chrisler.
But many reacting to the memorandum were concerned with how "short" the memorandum falls.
Kevin Cathcart, head of Lambda Legal Defense and Education Fund, said in a statement that [ t ] he day is long past for incomplete, piecemeal fixes that leave hard-working families uninsured and struggling."
"While ending any of the discrimination against gay and lesbian federal employees is a welcome step," Cathcart said, the June 17 announcement "falls far short of our hopes and expectations."
Lee Swislow, head of Gay & Lesbian Advocates & Defenders, a leader in the court fights over marriage equality, said the memorandum was a "very limited step toward equal benefits for same-sex partners of federal employees."
Rea Carey, executive director of the National Gay and Lesbian Task Force and a ceremony attendee as well, issued a statement saying the memorandum "inches our federal government closer to nondiscrimination both in word and policy, which is a good thing." But she added that "much more remains to be done in order for the administration to live up to the promises of equality the president made as a candidate on the campaign trail."
Frank Kameny, a gay activist who has been fighting longer than anyone for equal rights for gays in civil-service jobs, called Obama's memorandum "a reasonable half-step, given DOMA [ the Defense of Marriage Act ] and all of that."
Kameny, too, was an invited guest to the Oval Office. Also attending were Leonard Hirsch, president of the federal gay employees group GLOBE; Joe Solmonese, head of the Human Rights Campaign; Berry; U.S. Export-Import Bank Chair ( and gay appointee ) Fred Hochberg; U.S. Sen. Joe Lieberman, a sponsor of the federal-employee benefits bill; and Lorilyn Holmes, a career federal employee.
What the memorandum says
The two-page memorandum that Obama signed does not specify any new benefits to be given to LGBT federal employees. It makes a "request" that Berry and Secretary of State Hillary Clinton "extend the benefits they have respectively identified to qualified same-sex domestic partners of Federal employees where doing so can be achieved and is consistent with Federal law."
In a telephone conference call with reporters prior to the signing ceremony, Berry said there were two benefits for all LGBT federal employees: long-term care insurance and sick leave to care for domestic partners and any shared children. Three additional benefits were identified for LGBT employees who are posted overseas.
The memorandum requests that the heads of all other executive departments and agencies "conduct a review" of current benefits within 90 days "to determine what authority they have to extend such benefits to same-sex domestic partners of Federal employees" and submit a report on this to OPM. It directs OPM to consult with the Justice Department to develop recommendations to the president for "any additional measures that can be taken, consistent with existing law … ." And it further directs OPM to "issue guidance" to other departments and agencies within 90 days regarding compliance with current civil service laws and regulations.
The memorandum indicates that it is "subject to the availability of appropriations" and "is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States..." These latter provisions have appeared on a variety of presidential documents.
Memorandum vs. executive order
Some bloggers and activists have questioned why the president chose to issue a memorandum rather than an executive order. ( Note: During the ceremony, Obama referred to the document as an "executive order," although the document itself is identified as a "memorandum." )
Some speculated that a memorandum is valid only during the administration of the president who signs it, while an executive order remains valid until or unless a future president revokes it. An advisory memo from the Justice Department to President Bill Clinton's White House Counsel in 2000 that "a presidential directive that is not styled as an executive order" does not expire at the end of a president's term. Instead, said the memo, "as with an executive order, unless otherwise specified, a presidential directive would remain effective until subsequent presidential action is taken."
According to a 1999 report—"Executive Orders and Proclamations," by the Congressional Research Service—executive orders and memoranda are, generally speaking, interchangeable.
Is this really new?
Only one other president has issued a presidential directive aimed specifically to help LGBT citizens. President Clinton issued an executive order in 1998, banning discrimination based on sexual orientation in federal civilian employment. The document added "sexual orientation" to an already existing executive order, No. 11478, which banned discrimination in federal civilian service based on race, color, religion, sex, national origin, handicap and age.
Prior to that, Clinton signed an executive order concerning criteria for obtaining security clearances, in 1995, that also included a provision that "No inference concerning the standards … may be raised solely on the basis of the sexual orientation of the employee."
During Berry's conference call with reporters June 17, gay political blogger John Aravosis of AmericaBlog.com said he thinks the Obama memorandum is delivering benefits gay civil-service workers already have. Aravosis said a gay Defense Department employee told him that she has been allowed to take sick leave to care for her partner since the Clinton years.
But Obama's memorandum, noted Kameny, is the first to give any recognition to gay relationships. Kameny, who began his fight for non-discrimination in civil service in 1957 after being fired from his federal job for being gay, noted that, at that time, there was a ban on gays working in the civil service. Many court challenges to the policy, including Kameny's, eventually forced the then-Civil Service Commission to eliminate that ban in 1975.
Commentator Rachel Maddow noted that the president's remarks and his signing of the memorandum constituted his "first move in support of gay rights since taking office and his first substantial comments on gay rights since taking office."
At the White House's daily press brief, White House Press Secretary Robert Gibbs said the timing of the memorandum was not affected by the recent onslaught of LGBT criticism of the administration of a Department of Justice memo that said "homosexuals" are not being discriminated against by the federal Defense of Marriage Act.
Based on early reaction to the memorandum, it does not appear that the criticism has been significantly quelled. A number of critics point out that DOMA addresses only the meaning of the word "marriage" and "spouse" concerning federal laws and regulations and not "domestic partners." They say, therefore, the memorandum could have delivered more than just long-term care and sick leave.
However, the Federal Employees Health Benefits Program defines eligibility as "spouse" and children.
©2009 Keen News Service
