Gov. Chris Christie (R-N.J.) and I got into an epic argument on “Morning Joe” in February when I took issue with his assertion that he and President Obama have the same position on same-sex marriage. In a blog post later that day, I slammed Christie for not seizing the chance to grant gay and lesbian couples the right to marry.
“The state legislature handed Christie a bill that would have made New Jersey the eighth state in the nation to legalize same-sex marriage. He had the opportunity right then and there to show true courage and leadership by signing it into law. Instead, he punted,” I wrote then. “Obama has had no such opportunity to affix his signature to such historic legislation. Saying flat-out ‘I’m for gay marriage’ would be high on symbolism and moral persuasion. But it would be low on real impact. Instead, the president has taken real actions that fly in the face of Christie’s criticism.”
And, yet, when Obama recently had the opportunity to show leadership in granting protection from discrimination based on sexual orientation and gender identity, he was the one to punt. There is still time for him to change his mind, but the clock is ticking.
An executive order barring discrimination by federal contractors on the basis of sexual orientation and gender identity had been sitting on the president’s desk since February. But the administration announced earlier this month that no action would be taken on the measure “at this time.” Meanwhile, it is ramping up its efforts to get the Employment Non-Discrimination Act (ENDA) passed by Congress.
Why can’t the president do both as part of a long-term strategy?
ENDA will not be passed this year. In fact, given the hyper-partisanship on top of it being an election year, we’ll be lucky if any significant bills become law. But ENDA is a controversial piece of legislation that would ban discrimination in employment based on actual or perceived sexual orientation or gender identity. It went down in defeat in the Senate by one vote in 1996. Despite having more than 200 sponsors in the House in 2009, the bill wasn’t brought to the floor for a vote. A similar bill in the Senate that year never made it out of committee. New measures were introduced in the House and the Senate last year and have gone nowhere since. So, the administration is right to focus its attention on building the constituency inside Congress and in the business community to get ENDA passed.
This is the same tack taken to ensure the repeal of “don’t ask, don’t tell” (DADT). But, as The Post editorial taking Obama to task for not signing the federal contractor executive order pointed out last week, when Obama set about to repeal DADT in 2010, there was also independent presidential action that raised the bar on enforcement of the ban on gay men and lesbians serving openly in the military. The independent presidential action that could be taken now is the executive order. By signing it, the president would have the federal government finally catch up with long-standing practice in the private sector.
According to the Human Rights Campaign, 87 percent of the Fortune 500 prohibit discrimination based on sexual orientation and 46 percent prohibit it based on gender identity. For the latter, it was only three percent just 12 years ago. To go even further, nine of the Fortune 10 have non-discrimination protections based on sexual orientation. Six of the Fortune 10 have them based on gender identity. Meanwhile, 21 states and the District of Columbia prohibit discrimination based on sexual orientation. Of those states, 16 plus the District also protect against gender-identity bias.
According to the Williams Institute at the University of California Los Angeles Law School, “Among federal contractors, 61 percent of employees are already covered” by laws or company policies against discrimination based on sexual orientation. For gender identity, the percentage is 41. And there were three data points in a “confidential memo” written by the Williams Institute and the Center for American Progress that deserve highlighting.
The top 5 federal contractors are all defense contractors — Lockheed Martin, Boeing, Northrop Grumman, Raytheon, and General Dynamics — and together they receive about a quarter of all federal contracting dollars. Five out of five have nondiscrimination policies that include sexual orientation; five out of five have nondiscrimination policies that include gender identity; and the four largest provide domestic partner benefits.
Looking at the top 25 federal contractors, 24 have nondiscrimination policies that include sexual orientation; 13 have nondiscrimination policies that include gender identity; and 18 provide domestic partner benefits.
Finally, looking at employees of federal contractors that are in the Fortune 1000, 92 percent are already protected by a company-wide sexual orientation nondiscrimination policy, and 58 percent are already protected by a gender identity nondiscrimination policy.
In short, given the data, signing an executive order barring federal contractors from discrimination based on sexual orientation and gender identity most likely would not be such a big deal in the business world. But it is the political world with which Obama must contend.
Perhaps the president and the reelection team don’t want to do anything that would rile passions on the right and would give the presumptive Republican nominee any possible opening to attack him and his administration. But leadership is about doing the right thing when it is neither easy nor convenient.
A parallel process of signing the executive order while laying the groundwork for passage of ENDA is the way to go. Due to the six-month timeline for writing regulations and public comment, the door on the executive order closes sometime in June if this is to be in place before the end of the term. Until then, Obama has the opportunity to show leadership by signing it. Don’t punt, Mr. President.