June 29, 2011
Obama and same-sex marriage: the lawyerly straddle continues
Republished from the University of Chicago Law School Faculty Blog.
President Obama's remarks last week to a gay/lesbian fundraising event must have disappointed his supporters who have grown tired of straddling and rhetorical games on the subject of marriage equality from someone who once called himself a "fierce advocate" for gays and lesbians.
To be sure, this administration has accomplished far more to advance gay and lesbian equality than any other: the repeal of Don't Ask, Don't Tell; the bold decision not to defend the federal Defense of Marriage Act (DOMA); a federal mandate that hospitals allow visitation rights to gay partners; passage of a new hate crimes law. Much of this policy and legal work has been creative and courageous.
And yet, speaking in New York, where gays and other progressives are on the one-yard line of legalizing same-sex marriage, Obama could not bring himself to join or even clearly endorse their fight. The best he could do was praise marriage supporters for advancing "debate" and "deliberation about what it means here in New York to treat people fairly in the eyes of the law." Grappling with issues that are "tough" and "emotional" will, he said, help assure that "slowly but surely we find the way forward."
This sort of circumlocution is one of the skilled speechwriter's dark arts: avoiding candor and commitment while bathing your audience in seemingly empathetic platitudes. To say you believe your friends are "doing exactly what democracies are supposed to do" is not the same as declaring your solidarity with the moral purposes of their struggle. It is a way of flattering them because you hope they'll still like you (and donate time and money to your campaign) while also staying above the fray.
The president said he "believe[s] that gay couples deserve the same legal rights as every other couple in this country." But this is lawyerly precision in the service of straddling. He would not say that gay couples deserve "marriage." Obama wants to "keep on fighting until the law no longer treats committed partners who’ve been together for decades like they’re strangers." But this is more political circumlocution. What gays want is simpler but more profound: for their relationships to be regarded as equivalent in the eyes of the law to those of straight people. There is a subtle but important difference between having "the same legal rights" as someone else and having actual equality.
Civil unions, the vehicle Obama supports to provide those "same legal rights," are not the same as marriage. As one commentator has written:
There are legal reasons why they're not equal -- marriage is recognized in every state and indeed every country, while civil unions aren't; so the rights and responsibilities don't necessarily travel with you when you leave the state that granted them.
There are emotional reasons -- marriage is an institution/ ritual/ relationship that has existed for thousands of years, one that has tremendous resonance in our culture in a way that civil unions simply don't. And there are moral reasons -- as history has born out, separate but equal is pretty much by definition not equal.
And as David Buckel of Lamdba Legal writes:
For people who would choose to marry, anything other than marriage has to be explained. Only the word married conveys the universally understood meaning applicable to many of our families — a meaning unmatched by any other word. By imposing civil unions and barring marriage, even if the two statuses offer the same benefits and obligations on paper except for the powerful “M” word, the government is forcing same-sex couples to explain the difference in theirdaily lives. They lose the respect and dignity they believe their commitment deserves.
Obama's clearest, most unequivocal statement on marriage remains the views he expressed to pop preacher Rick Warren during the 2008 campaign: “I believe that marriage is the union between a man and a woman. Now, for me as a Christian…it is also a sacred union. God’s in the mix.” If this remains Obama's true belief, as opposed to another posture, then ironically he may have more political and moral kinship than he might like to admit with those who wrote and pushed through DOMA in 1996. DOMA's sponsors asserted that among the purposes of their legislation was "defending and nurturing the institution of traditional, heterosexual marriage," because such family configurations had been "ordained by God."
Let's be candid. Obama faces a nihilistic political opposition that has demonstrated it will say anything in order to demean and defeat him, whether true or not. Does he really think that if he technically does not endorse same-sex marriage, the people who fight against gay marriage will keep an open mind about voting for him? Or, at a time when a majority of Americans now support marriage equality, does he really believe that this kind of political tapdance will be alluring to "moderates"?
Obama reminded his audience Thursday night that he had taught constitutional law (it was at this law school, no less), and that this experience led him to conclude that DOMA was unconstitutional. But opposing DOMA -- which concerns whether the federal government should merely recognize extant same-sex marriages that have been created by the states -- is not the same thing as declaring that you believe it is legally just and morally salubrious for states to provide equal marriage. As a former con law teacher, Obama also should know that when people are seeking full legal equality in a civil institution, "separate but equal" compromises--the kind of compromise he continues to endorse regarding same-sex marriage--have been rejected since Brown v. Board of Education more than half a century ago as not only unconstitutional, but illusory and cynical as well.