According to a new report in the Washington Post, the Obama administration is currently considering a reversal on signing an sign executive order that would protect gay federal contractors from workplace discrimination. The move, if seized on, would add another victory to Obama's campaign to secure equal rights for gay Americans, and send an undeniable message to Congress, which has stalled in delivering anti-discrimination protections to all gay Americans. The question now is what price, if any, Obama is willing to pay for exercising his executive authority.
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If issued by Obama, the order would borrow certain provisions from the Employment Non-Discrimination Act, which would protect all Americans versions from discrimination based on sexual orientation. (Currently, under federal law, an employee of a federal contractor may be fired simply because he or she is gay — unlike regular federal employees, who are protected from such discrimination.) In the past, Obama officials have argued against an executive order because it wouldn't reach far enough. In April 2012, Obama's Press Secretary told reporters that the President wants to mimic his approach to Don't Ask, Don't Tell, working carefully behind the scenes to ensure comprehensive reform over a more incremental approach.
But as the ENDA has continued to flounder in Congress — given the Republican-controlled House, it's widely considered to be unpassable — this rationale feels more and more untenable, sacrificing the good on behalf of the perfect. Still, the boldness of the potential order is bound to attract ire from the President's opposition. Citing Republicans' distaste for executive overreach, the Post's Zachary Goldfarb notes what Obama could face in the weeks to come:
The approach risks angering Republican lawmakers in Congress, who say they are leery of granting the executive branch too much power and have already clashed with Obama over the issue. In a ruling last month, a federal appeals court said Obama exceeded his constitutional powers in naming several people to the National Labor Relations Board while the Senate was on a break.
On gay rights in particular, though, Obama's timing seems more favorable. Beyond the opportunity provided by his re-election and the House's intransigence, Obama would also be riding a clear momentum toward gay equality: a week ago, Defense Secretary Leon Panetta extended a subset of privileges to the spouses of same-sex military couples, and on March 27, the Supreme Court will entertain oral arguments for United States v. Windsor, which has the potential to overturn the Defense of Marriage Act.