Yesterday, the administration defended its decision not to issue an executive order prohibiting employment discrimination on the basis of sexual orientation and gender identity in federal contracting by arguing that the administration would rather build support for the more comprehensive Employment Nondiscrimination Act (ENDA). “The approach we’re taking at this time is to try to build support for passage of this legislation, a comprehensive approach to legislate on the issue of non-discrimination,” White House Press Secretary Jay Carney explained during an eight minute exchange with journalists at his daily briefing. “And I would make the comparison here that pursuing that strategy, the passage of ENDA, is very similar to the approach the President took for the legislative repeal of “don’t ask, don’t tell.”
But the reporters remained dubious, pressing, “if he does support ENDA, why not sign this executive order which relates to a smaller part of the population to get that policy started?” NBC’s Kristen Welker wondered, “Is this a political calculation”?
Carney stressed that the campaign did not shape the administration’s decision but suggested, remarkably, that in this case, the president was willing to make that perfect the enemy of the good — abandon interim reforms that would have extended protections for millions of Americans in favor of sweeping comprehensive change that has little hope of advancing in a Republican-controlled House of Representatives. The argument is untenable — unbelievable — and even Carney’s comparison of employment nondiscrimination to the legislative repeal of DADT falls flat on closer examination.
After all, before Congress passed legislation that eliminated the policy in December of 2010, the Defense Department took a series of steps to ease the implementation of the ban. In February of 2010, then-Defense Secretary Robert Gates ordered a 45-day review into how the Don’t Ask, Don’t Tell military policy could be enforced more humanely, and in March of that year, he announced more lenient guidelines for enforcing the ban against homosexual conduct and behavior. The new rules limited enforcement of the policy to those cases where servicemember actively outed themselves.
Obama ultimately rejected calls to use executive authority to end the discharges, but his administration did accelerate the repeal process through administrative action. And that approach, to use Carney’s words, should be “instructive here in terms of the approach the administration [should take] at this time.”