NPR's Zwerdling understated LGBT criticisms of Obama's DOMA brief

In a June 17 NPR news brief on President Obama's upcoming announcement of a memorandum to give benefits to same-sex partners of federal employees, correspondent Daniel Zwerdling mischaracterized and understated criticism leveled by lesbian, gay, bisexual, and transgender activists of actions the Obama administration has taken on LGBT issues. Specifically, Zwerdling reported that "gay activists ... wanted his administration to support same-sex marriage; instead, the administration is defending the federal law that forbids the federal government to recognize same-sex marriage." In fact, prominent members of the LGBT community have not merely criticized the administration's defense of the Defense of Marriage Act (DOMA); they have also sharply criticized the manner in which it has defended the law, filing a brief in federal court that included, among other things, a section referring to prior legal cases involving incest and marriages to underage girls. Zwerdling further claimed that "the president could pacify activists today when he signs" the memorandum, ignoring numerous reports that activists are far from "pacified."

Contrary to Zwerdling's suggestion, criticism of the Justice Department's actions in the DOMA case went far beyond its defense of DOMA. In a June 16 editorial, The New York Times highlighted objections to the brief in the DOMA case:

The brief insists it is reasonable for states to favor heterosexual marriages because they are the "traditional and universally recognized form of marriage." In arguing that other states do not have to recognize same-sex marriages under the Constitution's "full faith and credit" clause, the Justice Department cites decades-old cases ruling that states do not have to recognize marriages between cousins or an uncle and a niece.

These are comparisons that understandably rankle many gay people. In a letter to President Obama on Monday, Joe Solmonese, president of the Human Rights Campaign, a gay rights organization, said, "I cannot overstate the pain that we feel as human beings and as families when we read an argument, presented in federal court, implying that our own marriages have no more constitutional standing than incestuous ones."

The brief also maintains that the Defense of Marriage Act represents a "cautious policy of federal neutrality" -- an odd assertion since the law clearly discriminates against gay couples. Under the act, same-sex married couples who pay their taxes are ineligible for the sort of federal benefits -- such as Social Security survivors' payments and joint tax returns -- that heterosexual married couples receive.

In the presidential campaign, President Obama declared that he would work to overturn the Defense of Marriage Act. Now, the administration appears to be defending it out of a sense of obligation to support a validly enacted Congressional law. There is a strong presumption that the Justice Department will defend federal laws, but it is not an inviolable rule.

If the administration does feel compelled to defend the act, it should do so in a less hurtful way. It could have crafted its legal arguments in general terms, as a simple description of where it believes the law now stands. There was no need to resort to specious arguments and inflammatory language to impugn same-sex marriage as an institution.

Zwerdling's claim that "the president could pacify activists today when he signs a presidential memorandum" ignores reports suggesting otherwise. For example, referring to reports that Obama would announce his signing of the domestic partner benefits memo, Salon.com's Alex Koppelman reported in a June 17 post on The War Room:

The early reaction, however, suggests that some people aren't going to be placated this easily, in part because it's unclear what, if anything, Obama's action will actually accomplish. An expert who spoke with the Advocate told the magazine that, because of DOMA, the memorandum won't be enough to grant same-sex couples healthcare or retirement benefits, for instance. There's also some question about whether the memorandum's effect would be permanent, or whether it would expire when Obama leaves office.

"This is very nice -- I'm sure there's lots of gay federal employees who will appreciate these benefits, although it's not clear what benefits they're actually getting," Americablog's John Aravosis told Salon Tuesday night. But, he said, "Tomorrow night, from what they're talking about, sounds so irrelevant. It's not what people are angry about, and it still ignores [Obama's] commitments to the community ... Everyone I know has been saying for weeks that it feels like the 90's with [the administration] -- the way they're acting towards the gay community, the fear they have of doing anything politically for us."

Aravosis isn't alone in that sentiment. [The Politico's Ben] Smith quotes the the executive director of the Empire State Pride Alliance as saying, sarcastically, "Welcome to 1999. How revolutionary of the White House to give benefits to same-sex couples, when two-thirds of conservative Wall Street are already doing it. What an achievement." And on his blog, the prominent gay writer and radio host Michelangeo Signorile cited Smith's post, adding, "[T]he Obama administration is throwing us a pathetic bone: benefits for federal workers. Wow. Give me a break!"

Moreover, the Los Angeles Times reported in a June 17 article:

It was not immediately clear whether Obama's latest decision would mollify his critics. Some offered only grudging support Tuesday night after learning of the president's intentions.

"This is a good thing for the small percentage of ... people that work for the federal government, but it leaves out the vast majority of people who are in same-sex relationships," said Geoff Kors, head of Equality California, one of the state's largest gay rights groups.

From the June 17 edition of NPR's Hourly News Summary:

ZWERDLING: Barack Obama promised to fight hard for the rights of gay couples, but since he took office, gay activists have worried that he's abandoning them. For instance, they asked the president to block the military from punishing gay troops, and he declined. They wanted his administration to support same-sex marriage; instead, the administration is defending the federal law that forbids the federal government to recognize same-sex marriage.

But the president could pacify activists today when he signs a presidential memorandum. The State Department promised recently that gay partners of its employees can get limited benefits, like diplomatic passports and language training. The president might broaden that, although administration officials won't say whether gay partners will now get pensions and health insurance.

Daniel Zwerdling, NPR News.