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Barack Obama, Mario Cuomo, Ed Koch and Executive Orders

April 12, 2012

The New York Times reports that gay activists are peeved that President Obama won’t issue an executive order banning discrimination by federal contractors on the basis of sexual orientation.  The Obama Administration enforces a ban on sexual orientation discrimination in federal employment, and the Administration is on record in favor of legislation banning private sector discrimination based on sexual orientation.  But with Republicans in control of the House of Representatives, and holding a cloture-proof minority in the Senate, federal anti-discrimination legislation has no short-term future.

Obviously, President Obama doesn’t want tax dollars to go to companies that discriminate against lesbians and gay men.  So why won’t he issue an executive order banning sexual orientation discrimination by companies that do business with the federal government?

The Times reporting doesn’t give an answer, and the White House hasn’t briefed me.  But gather ‘round, because I have a story to tell.  Call it “The Parable of the Two Executives.”

In 1980, New York Mayor Ed Koch issued Executive Order 50, banning discrimination by New York City contractors on the basis of “race, creed, color, national origin, sex, age, marital status, sexual orientation or affectional preference.”  (Weren’t the ‘80s quaint?)  Discrimination on all of those bases except sexual orientation (and affectional preference) was already prohibited by the New York City Human Rights Law, duly enacted by the New York City Council.  Sexual orientation discrimination was prohibited at that time neither by New York City law nor by New York State law.

Executive Order 50 required the city’s Bureau of Labor Services to promulgate regulations to implement the executive order, and those regulations became effective in 1982.  The regulations required that most city contracts include the anti-discrimination provisions.  The regulations further required city contractors to advertise the anti-discrimination criteria when they recruited for employees.

Legal challenges were filed by Agudath Israel, the Salvation Army, and a not-for-profit organization run by the Roman Catholic Archdiocese.  The three religious entities had city contracts to run various social services programs like senior centers, day care facilities, and counseling services, and all of them wanted to be able to continue employment discrimination against gay people.  Their legal position was that the Mayor had no authority to ban discrimination based on sexual orientation by city contractors, because that power was a legislative power reserved to the City Council.  The litigation was not resolved until 1985.

Meanwhile, Mario Cuomo was elected New York State governor in 1982.  Some might remember that there was in those days a considerable rivalry between Koch and Cuomo.  Koch had beaten Cuomo in the 1977 race for Mayor.  The gay community in the city chose up sides, and the fight was bitter, with recriminations lasting more than a decade.  Koch’s sexual orientation was questioned, and he took to appearing with Bess Meyerson, a former Miss America, in a fairly obvious attempt to imply that they were an item – and therefore that he was heterosexual.  A slogan appeared, “Vote for Cuomo, Not the Homo,” and although the Cuomo campaign denied responsibility, the Koch camp never believed the denial.

Gay leaders who had supported Cuomo through all of that expected to be rewarded when Cuomo became governor.  They pressured Cuomo to issue an executive order comparable to Koch’s Executive Order 50.  But Cuomo resisted on the ground that his legal authority to issue such an executive order was dubious.  Cuomo cultivated an image as a deliberative governor who respected the law and the courts.  But gay leaders weren’t having it:  if Koch had the power to issue Executive Order 50, what was up with Cuomo?

I attended a meeting of gay activists with Mayor Koch’s first Corporation Counsel, Allen Schwartz, probably in 1981.  Schwartz laid out his argument why Executive Order 50 was legal.  To me, the argument made no sense – this was a clear loser.  At a time when pretty much every gay rights battle went against us, I thought it was important not to pick fights we couldn’t win.  In order to get legislators to stick their necks out for us, we had to win enough fights that legislators could begin to gain confidence that a pro-gay vote was not a political death sentence.

I asked Schwartz, “What’s your Plan B?”  He asked me what I meant.  I said, “When the courts strike this executive order down, what’s your back-up plan?”  He had no answer.  There was no back-up plan.  The lesson I drew from this was that Koch’s executive order was not about advancing the rights of gay people, it was about pandering to a constituency.

In 1985, the New York Court of Appeals invalidated Koch’s executive order, ruling by 6-1 vote that the Mayor had transgressed the legislative authority of the Council.

Cuomo never issued a comparable executive order.  Eventually, both New York State and New York City legislated bans on sexual orientation discrimination.

I have no pipeline to Obama’s thinking on the issue of a federal executive order.  If there is doubt about his legal authority to issue the executive order, he’s unlikely to say so publicly – no executive wants to rule out any area of power unnecessarily.  But Obama is a constitutional scholar – more like Cuomo in this respect than like Koch, who once famously pronounced that “the constitution is dumb.”  So I can’t avoid wondering if Obama knows what Cuomo knew, and what Koch ignored, about the limits of his authority.

The gay community’s beef should not be with President Obama, it should be with Republicans in Congress, who are OK with federal law allowing employers to fire people for being gay.

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