Guest Blogger Naeemah Johnson: Congratulate President Obama for standing up for equality in love

Naeemah Johnson is a10th grade student at Mastery Charter School in Philadelphia. She is interning at the ACLU for the spring semester.

Today President Obama ordered the Department of Justice not to defend DOMA (Defense of Marriage Act). This is truly a surprise. Some people say gay marriage should be unconstitutional, if so, love also must be unconstitutional. Who is the government to tell people what gender they should marry or should not marry? When two people love each other and want to spend the rest of their lives with one another, they get married. So why can’t two females or two males who are in love with one another in get married in every state? To me, America is supposed to be the land of the free, people should be free to marry whomever they love. Our president understands this and is ready to change things. Many in the Congress won’t be happy with this. They don’t want Obama to have the power to make this decision, but he is the President. When Bush was in office he was selective in choosing which laws to enforce and got no trouble from the Congress. President Obama should be congratulated for standing up for equality in love. This is a change my generation can believe in.

Breaking News: President Obama instructs Justice Department not to defend DOMA

According to a press release from the Department of Justice, President Obama has instructed the Department of Justice not to defend Section 3 of the Defense of Marriage Act. From the release by Attorney General Eric Holder:

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.   The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.   Given that conclusion, the President has instructed the Department not to defend the statute in such cases.   I fully concur with the President’s determination.

This is huge news, and impacts the ACLU's case on behalf of Edie Windsor, whose marriage and inheritance rights were not recognized by the government after her wife and partner of 44 years passed away in 2009. There's a terrific video about Edie and her wife Thea and their case, which I highly recommend. It's embedded below.

With the Stroke of a Pen?

I've been wondering something for a while now. Over and over you'll hear from people who are frustrated by the Obama Administration's lack of progress on gay rights issues that "he could end Don't Ask Don't Tell with the stroke of a pen." I wasn't really sure if that was true. Don't Ask Don't Tell was the result of a law passed by Congress, so could the president overturn that with an Executive Order?

Today I got curious enough to go in search of the answer and - working under the assumption that I am not the only person in the world with this question - I will now share the answer I found.

It is (drum roll, please)...sort of.

According to a report issued by the Center for American Progress

Careful examination of the laws outlining the president's powers as commander in chief show that the executive branch has the authority to suspend homosexual conduct discharges without legislative action. Yet because Congress originally passed the ban on openly gay men and lesbians serving in the military, such a suspension will eventually have to be followed up with legislative action reversing the policy.

Congress, in the Authority of the President to Suspend Certain Laws Relating to Promotion, Retirement, and Separation—10 U.S.C. § 12305—grants the president authority to suspend the separation of military members during any period of national emergency in which members of a reserve component are serving involuntarily on active duty.

This provision is commonly referred to as "stop loss" authority. This policy has affected an estimated 120,000 service members since 2001, and more than 13,000 service members are still unable to leave the military because Secretary Gates has stated that the Department of Defense intends to keep the policy for another two years.

President Obama [could] issue an order prohibiting the Secretary of Defense—and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating under the Navy—from establishing, implementing, or applying any personnel or administrative policies, or taking a personnel or administrative action, in whole or part on the basis of sexual orientation. The order [could] further prohibit sexual orientation discrimination within the armed forces and among people seeking entry into the Armed Forces. This would include banning further dismissals on the basis of DADT.

Click here to see the entire report.

So basically, the president couldn't really take the policy away, but he could stop it from being enforced, as long as we continue to be at war and the military continues to institute stop loss measures. After that, the fix is going to have to be legislative.

I, for one, am happy to finally have that question cleared up.

Becca in Harrisburg

**If you would like to know more about Don't Ask Don't Tell - how it came to be, what the problems with it are, and what other countries' experiences have been - I recommend an excellent book by Nathaniel Frank, Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America.

Quote of the day

"As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake."
--President Barack Obama, January 20, 2009