Current Affairs

Obama’s highest-ranking gay official says DOMA and the military gay ban currently have no chance of being repealed

Jessica Geen June 15, 2009
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John Berry, the highest-ranking gay in the Obama administration, has given an interview on the administration’s stance on gay rights.

Speaking minutes before announcing that the administration hopes to secure passage of a hate crimes bill this week, Berry told that Obama may wait until his second term to improve gay rights.

Saying he had been authorised by the administration to speak, Berry told the publication: “Now, I’m not going to pledge – and nor is the president – that this is going to be done by some certain date. The pledge and the promise is that, this will be done before the sun sets on this administration – our goal is to have this entire agenda accomplished and enacted into law so that it is secure.

When asked by interviewer Kerry Eleveld whether this would mean a second term, as suggested by some observers, the openly gay head of the Office of Personnel Management replied: “I say this in a broad sense – our goal is to get this done on this administration’s watch.”

The president has promised to repeal the military gay ban and the Defence of Marriage Act (DOMA), which bars federal benefits for gay couples, but gay campaigners have accused the White House of dragging its feet over the issues.

Berry also claimed that Obama has no legal ground on which to oppose current laws, saying: “This president took a solemn oath to uphold the Constitution of the United States and he does not get to decide and choose which laws he enforces … It would be wrong for me or any of our community to advise him to lie or to shirk his responsibility. He’s doing his job.”

However, experts have said he does have the authority to challenge laws which may be unconstitutional. Former Clinton aide Richard Socarides, writing on, argued that the president does not necessarily have to defend the law against constitutional attack.

He wrote: “I know and accept the fact that one of the Department of Justice’s roles is to (generally) defend the law against constitutional attack. But not in all cases, certainly not in this case – and not in this way. To defend this brief is to defend the indefensible.”

Last week, the Justice Department defended DOMA. Some bloggers claimed Obama invoked incest and child marriage while defending the brief.

Others said he had essentially declared gay rights less important that black rights, on the anniversary of Loving v Virginia which struck down laws against interracial marriage in the state.

The Palm Center at the University of California has also claimed Obama can end the dismissal of openly gay soldiers with just a single order. The centre added that Congressional approval is not needed to lift the ban and that he has three legal bases on which to repeal the ‘Don’t Ask, Don’t Tell’ law.

When asked about discussion of the military gay ban being pushed back, Berry admitted that this, along with provisions for hate crime protection and anti-discrimination measures, was unlikely to happen soon.

He said: We don’t have the votes to do Hate Crimes right now, we don’t have the votes to do ENDA [the employee non-discrimination act], how are we going [to get ‘Don’t Ask, Don’t Tell’]?

Berry gave gay rights activists some good news, saying that a “significant announcement” will be made soon regarding equal benefits for LGBT federal employees.

More: Americas

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