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Biden’s Remarks on LGBT Executive Order Leave White House Dodging

by Justin Snow
Thursday May 8, 2014
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Joe Biden and Barack Obama
Joe Biden and Barack Obama  (Source:Pete Souza)

Does President Obama agree with Vice President Biden that there would be "no downside" to signing an executive order prohibiting federal contractors from LGBT workplace discrimination?

That was the question posed to White House press secretary Jay Carney today after Biden appeared to contradict the president’s position on such an executive order during an interview published Wednesday by The Huffington Post.

"I don’t see any downside," Biden told The Huffington Post when asked about an executive order that would prohibit federal contractors from discrimination on the basis of sexual orientation and gender identity. "The way to do this is to pass ENDA. That ends it everywhere."

Carney responded to Biden’s remarks in typical White House fashion, building upon two years of non-answers on an issue that increasingly contradicts the administration’s leadership on LGBT issues and strategy for federal policy.

"I don’t have any updates on suggested or proposed executive orders," Carney told reporters. "What I can tell you is we still call on Congress - the House - to follow the Senate’s lead and pass the Employment Non-Discrimination Act."

Carney went on to reiterate the administration’s support for LGBT-rights and criticize those opposed to ENDA on Capitol Hill as standing on the wrong side of history.

"Those who oppose it, I hope at least their children, will regret the reasons they put forward for opposing it because they sound a lot like the reasons opponents argued against civil rights legislation in the past. They were wrong then and they’re wrong now," Carney said. "I think this is an incredibly important issue. I think it is remarkable how much progress has been made and remarkable that there is still resistance to the progress that remains to be made. And that’s certainly the president’s view."

Carney did not address whether Obama agrees with Biden’s assessment that there would be "no downside" to signing an executive order.

This isn’t the first time Biden has seemingly contradicted the president on an issue of LGBT rights. Most notably, Biden has been credited with pushing the president’s hand on endorsing marriage equality after he voiced his support for same-sex marriage during a May 6, 2012, appearance on NBC’s Meet the Press. Three days after Biden said he was "absolutely comfortable" with same-sex couples marrying, Obama endorsed marriage equality.

It remains to be seen if Biden’s perceived lack of opposition of an executive order will again force the White House to act, but it certainly adds yet another foil to the administration’s intransigence on an issue that has frustrated advocates for years.

After indicating as a candidate for president in 2008 that he would sign such an executive order, it was in April 2012 that White House senior adviser Valerie Jarrett told leaders from some of the nation’s largest LGBT-rights organizations that Obama would not take executive action. Since that meeting, the White House has sought to defend its decision by telling supporters and the press that Obama supports passage of comprehensive federal legislation - ENDA - that will protect all workers, rather than just employees of federal contractors. That argument hasn’t sat well with LGBT activists, who have been some of the president’s most passionate defenders. They too support ENDA, but argue signing an executive order is necessary and a tangible step forward the president could take now.

Moreover, at the beginning of this year Obama announced a shifting strategy to use his pen to take executive action when Congress won’t act. With that strategy applied to minimum wage and the gender income gap, while still pushing for federal legislation on both those fronts, the White House has found itself in a contradictory position on the executive order for LGBT federal contractors. Asked in February by Metro Weekly why sign an executive order raising the minimum wage for federal contractors if the strategy is comprehensive federal legislation, White House press secretary Jay Carney responded simply, "I take your point."

Earlier this year, a total of 220 lawmakers - 168 members from the House of Representatives and 52 senators - urged Obama "to act now to prevent irrational, taxpayer-funded workplace discrimination against LGBT Americans" while they continue to work toward passage of ENDA in the House.

"An executive order on this topic would be very helpful and consequential to the employees who would be affected by it," Sen. Tammy Baldwin (D-Wis.) told Metro Weekly when asked about Biden’s remarks. "And I believe that we can still keep the pressure on the House of Representatives to pass ENDA, even if the president were to do this. These safeguards, these protections are meaningful in peoples’ lives."

Sen. Jeff Merkley (D-Ore.), ENDA’s lead sponsor in the Senate, took to Twitter after Biden’s remarks, stating, "Joe Biden’s right, there’s no downside to ENDA executive order. In fact, there’s a huge upside - fairness and equality for #LGBT Americans."

But even as Biden voiced no opposition to an executive order, he, much like the rest of the Obama administration, appeared to lack an understanding for the need for an executive order and ENDA. Just last month Carney said ENDA would make an executive order "redundant" and stated today that "executive orders aren’t necessarily completely overlapping with what would be achieved by legislation."

"When Mr. Carney previously called the executive order ’redundant,’ he showed a surprising lack of knowledge about the Obama administration’s own successful record enforcing the existing executive order banning racial and sex discrimination at federal contractors," said Tico Almeida, president of Freedom to Work. "In order to have full equality under the law, LGBT Americans need both the statute and the executive order because they have distinct enforcement procedures, and more discrimination can be prevented when both policies work in tandem."

Indeed, the pushed-for executive order is based on Executive Order 11246, which was first signed by President Lyndon B. Johnson on Sept. 24, 1965, prohibiting federal contractors from discrimination on the basis of race, color, religion, sex and national origin. That executive order was signed a year after Johnson signed the Civil Rights Act of 1964 prohibiting discrimination on the same basis.

Almeida says the Labor Department has secured a number of victories under the existing executive order, which has been expanded by several presidents. "LGBT Americans deserve these same workplace protections that the Obama Labor Department has been enforcing for other hardworking Americans," Almeida said. "There’s no good reason to leave only the LGBT community out of the workplace protections that have been applied by the Labor Department to everyone else."

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