Obama Argues Federalist Approach, but States Rights Wrong for Marriage Equality
Obama’s argument that gay marriage is for the states to decide fortifies opponents, weakens the effort.
President Barack Obama didn’t want to say whether he thinks same-sex marriage is a civil right after being asked at a news conference last week. To deny it would inflame equality advocates both straight and gay. To admit it would be an undeniable endorsement of gay marriage as a fundamental freedom that’s protected by the U.S. Constitution.
Instead, the president has been making a federalist argument for why the issue should be handled at the state level, despite the fact that the same rationale has historically served as a roadblock to civil-rights advancements.
“What happened in New York last week I think was a good thing, because what you saw was the people of New York having a debate, talking through these issues,” Obama offered. “I think it is important for us to work through these issues—because each community is going to be different and each state is going to be different.”
The president’s posture has roiled some Americans. But others have made the case that far from hamstringing the marriage-equality movement, Obama is helping it by wisely withholding his endorsement as the issue simmers and stews at the state level.
“The genius of federalism is that it allowed us to prove that marriage equality would not lead to catastrophe, that it has in fact coincided with a strengthening of straight marriage, that in many states now, the sky has not fallen,” Andrew Sullivan wrote in a NEWSWEEK/DAILY BEAST post last week titled "A President, Not a Governor." “Obama's defense of federalism in this instance is not a regressive throwback; it is a pragmatic strategy.”
This logic is founded on two misguided assumptions: (1) that if Obama came out for same-sex marriage, the debate at the state level would somehow grind to a screeching halt and (2) that Obama’s position exists outside that deliberation, magically affecting neither the content nor the outcome of the debate.
And perhaps most important, this thesis fails to anticipate the presidential effect on a landmark case at the U.S. Supreme Court, an eventuality that could come to fruition as early as next year with the challenge to Proposition 8. As much as we like to pretend that Supreme Court justices render rulings in a bubble, they are in fact no more immune to external factors than state lawmakers are oblivious to the positioning of the highest officeholder in the land.
The New York Times’s Maureen Dowd interviewed Perry v. Schwarzenegger dream-team attorneys Ted Olson and David Boies last year about whether they were disappointed in the president’s position on marriage equality.
“Damned right,” declared Boies. “I hope my Democratic president will catch up to my conservative Republican co-counsel.”
But Boies has been left wanting while the state debate marches on and his president provides political cover to every politician in the country who opposes same-sex marriage, including Democrats. If you don’t think Obama’s reticent, “God is in the mix” objection to gay marriage sets a framework for that discourse, I encourage you to review some of the arguments made from the House floor in Maryland, where marriage legislation died just a few months before New York’s triumph.
“It’s all about the word of God. It truly is,” offered Delegate Cheryl Glenn, a Baltimore Democrat, as she presented an amendment that would change the word “marriage” in the bill to “civil unions.” The measure failed on a voice vote.
Another Democratic delegate, Jay Walker of Prince George’s County, said he couldn’t ignore the wishes of his churchgoing constituency.
“My foundation, my beliefs, the people who have always backed me…have asked for us not to vote for this bill, and I’m going to respect their wish,” Walker said, though the legislation was pulled from the floor before a vote was taken.
Candidates running for higher office routinely set the bar to which their subordinates must rise. Not so long ago in 2006, Andrew Cuomo was fighting to reignite his political career as New York’s attorney general while one fiery Eliot Spitzer mounted a take-no-prisoners campaign for governor. After Spitzer announced his steadfast support for gay marriage and pledged to introduce a bill to legalize it, the issue became an immediate litmus test for every Democrat running for statewide office, and Cuomo found himself in a pitched battle to out-gay his primary opponent, Mark Green.
Put another way in a column penned by Richard Just last year, “While he may not realize it, Obama is already leading on gay marriage; he is just leading in the wrong direction. Every time Obama or a surrogate reiterates his position, it reinforces the idea that gay marriage is a bit too scary for the political mainstream.”
Just wrote the piece before Obama started famously “evolving” on the matter, but I would argue that the president’s current positioning sends the exact same signal: still too dicey.
Too dicey even though a majority of Americans now support same-sex marriage, including 69 percent of Democrats and 59 of independents, according to Gallup. Too dicey even as 70 percent of voters aged 18 to 34—a stellar demographic for Obama in 2008—embrace marriage equality. Too dicey even with certain religious groups such as Catholics (56 percent) and white mainline Protestants (55 percent) on the move.
As promising as all those numbers are, a presidential imprimatur for same-sex marriage would not only improve upon them, it also would accelerate their progression.
And when the question of marriage reaches the Supreme Court, the justices will ask themselves, is the country ready? Is it ready culturally, how many states permit same-sex marriage, and what are elected officials saying? At that point and in preparation for that point, the stated position of a sitting president—or even a past president—will certainly matter. At that point, the marriage-equality movement will need every potential arrow in its quiver: including public opinion, state wins, and yes, the support of our nation’s chief executive.
Of course, if we were to lose that venture at the Supreme Court, Sullivan’s article could be strangely prescient: then we really will have a state strategy. Indefinitely.
Even Sullivan acknowledges that while the president has no “actual political authority” over this issue, “he does have moral authority.” Yet he ultimately chides, “As gays and lesbians, we should stop looking for saviors at the top and start looking for them within.”
I’m not looking for a savior, I’m seeking the guy we elected. True, Obama never supported gay marriage in the ’08 campaign. But when he pledged to be “a fierce advocate” for lesbian, gay, bisexual, and transgender Americans, there was no asterisked note reading “Unless support for marriage equality surges, then I’ll run for the hills.”
Call me an idealist, but I’m looking for leadership.
Call me fantastical, but I’m looking for humanity.
As Olson told Dowd in the Times interview last year: “I think there’s something the matter with you if you don’t care enough to feel the suffering that they’ve been through and if you’re not emotionally upset about the fact that we’re doing an immense amount of harm to people … We’re not treating them like Americans. We’re not treating them like citizens.”
No one can know for sure the nature of the 2012 election, and certainly Obama’s aides can make a politically homophobic case for not supporting same-sex marriage just as easily as I can do the opposite. But here is what I know beyond a shadow of a doubt: making a callous argument to justify a political calculation isn’t advancing equality, it’s delaying it.