A Stitch in Haste

Let’s begin with what exactly the “historic” memorandum is — and is not:

–It is a request by President Obama. Literally: “I hereby request the following…” File that under “bold new leadership…”

–It is not “change.” The memorandum is thoroughly infested with weasel term such as “currently available,” “consistent with,” etc. At best, the memorandum is the equivalent of policy proofreading: Let’s go back and make sure we didn’t miss anything that we were supposed to do in the first place.

–It is expressly worded not to give gays any real tools to work with:

This memorandum 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, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

That’s boilerplate that always appears in such memorandums — when they’re meant not to mean anything.

–It is not a “law” by any denotation of the word. It goes into neither the United States Code nor the Code of Federal Regulations. Only the (voluminous but worthless) Federal Register, which is the functional equivalent of the federal government’s scrapbook.

–It is unconstitutional (or would be, if it were an actual law or order rather than a bottom-of-the-cereal-box plastic toy with no real value). More on that below.

–It is not applicable to health care benefits. With the putrid mucus of socialized medicine proposals gushing out of every Obama administration orifice, there’s a definite bit of “fierce advocate” irony there.

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Let’s go back to why the memorandum, were it at all substantive, would be unconstitutional.

–First, “domestic partner” is not a federal term of art, in either the statutory or regulatory senses, and is therefore unconstitutionally vague. What exactly is a “domestic partnership,” who gets to decide, what kind of notice is given, and is there an appeal process? Again, such questions are mere academic cocktail hour topics, since the memorandum isn’t really a government action in the first place.

–Second, there are equal protection questions. Let’s say you have three similarly situated same-sex couples “covered” (loosely speaking) by the faux initiative:

1. One in Massachusetts, where gays can get married.
2. One in New Jersey, where gays cannot get married but can get “civil unioned.”
3. One in Wisconsin, which has a “no nothing never” bigot amendment.

The one thing that the three couples have in common is that none of them have a “domestic partnership.” If the intent is to extend (already existing) benefits to the couples in Massachusetts and New Jersey, then where does that leave the Wisconsin couple?

Or perhaps the plan is to have an honor code: The federal employee need only fill out an affidavit declaring her loved one to be her “domestic partner.” But that poses equal protection issues too: Why shouldn’t unmarried heterosexual couples be afforded the same option?

Because in, e.g., Wisconsin, straights can get married but gays can’t? Okay — but now suppose you have a gay couple in Massachusetts who choose not to marry but opt instead to declare themselves an (unmarried) “domestic partnership” in order to glom on to the (not) new policy. Are we going to require them to get married to get the benefits? And so on…

Oh, and DOMA is still on the books. If the memorandum actually meant anything, and if anyone actually had standing to sue over it, then it’s fairly obvious that the more potently the memorandum were used, the more likely it would violate DOMA (which, recall, Obama is defending vigorously in court. Ahem…)

Again, this is all angels dancing on the head of our cowardly president. I expect no law review articles, intense blog debates or other elaborate evaluations of these (strictly hypothetical) issues to emerge. But they help illustrate just how pointless the memorandum is. One would normally be tempted to call it “insulting,” but this president has so callously insulted gays so many times already that this latest gesture barely warrants a footnote.

The memorandum does not insult the gay rights movement per se (leave that for the ever-lengthening trail of gay-hostile wreckage — from Rick Warren to the DOMA brief scandal, and likely beyond). Instead, this absurd piece of worthless paper insults our intelligence. This obnoxious, Rube Goldberg inspired non-policy, in which Obama actually finds a way to call nothing “something,” is like two parents letting their kids vote on toppings for the pizza and pretending that the family is a democracy. It’s cute — and strictly fantasy.

Gay apologists for Obama will either fall for it (again), or they won’t. While there have been some “green shoots” (rainbow shoots?) on that front, for now I’ll settle for a well-directed “I told you so…”

Filed under: Gay Rights and Issues, Law, Politics, Taxation & Fiscal Policy