This morning, like many of our readers, I watched Obama’s press conference, where he said this about marriage equality, New York, and the general state of the fight for equality [via Queerty]:
This administration under my direction, has consistently said, we cannot discriminate as a country against people on the basis of sexual orientation…
What I’ve seen happen over the last several years and 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. It was contentious, it was emotional – but ultimately they made a decision to recognize civil marriages. And I think that’s exactly how things should work. And so 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 – to work through them. In the meantime, we filed briefs before the Supreme Court that say any discrimination against gays, lesbians, transgenders is subject to heightened scrutiny and we don’t think DOMA is unconstitutional (sic – they do think DOMA is unconstitutional). So the combination of what states are doing, what the courts are doing, the actions we’re taking administratively, all are how the process should work…
I think what you’re seeing is a profound recognition on the part of the American people that gays, lesbians and transgender persons are our brothers, our sisters, our children, our cousins, our friends, our co-workers and that they’ve got to be treated like every other American. And I think that principle will win out.
Many have taken this as a full-throated endorsement of states’ rights, going so far as to compare it to anti-miscegenation voices in the days before Loving v. Virginia. I think this is misguided, for a lot of reasons, and I have a theory as to why the Obama administration is playing the political game they are playing on marriage equality.
Now, disclaimer: like all self-respecting gays, I surely do wish he would just come out and support marriage equality. It would be nice for the President to add his voice to the growing chorus of support for full, simple equality. However, the fact that he hasn’t really isn’t bothering me all that much. I think there’s a bit of a long-view, meta game going on here [which is fully in line with Obama's actions on lots and lots of issues], and I’m not necessarily endorsing said game, but rather simply explaining what I think is going on.
Disclaimer two: I’m not even entertaining the notion that Obama secretly hates gay people or anything like that, as I see it as a psychological problem on the part of the one who holds the opinion, rather than a rational, informed opinion based on anything. Obama’s statements on marriage equality don’t deviate one bit from the historical statements of other Democrats in lesser positions who have straddled the line on marriage equality until finally coming out in support.
So, to offer my analysis of what I actually think is going on, I’m going to springboard off Andrew Sullivan’s piece on the subject from this morning. While I rarely agree with Andrew on anything, god love him, I think he’s on the right track here:
[The Obama administration] withdrew legal support for DOMA. Again, a critical factor, along with moves in the states, to get the Supreme Court at some point to acknowledge that equal protection means equal protection; and that the logic of banning marriage for two percent of the population evaporates upon close rational inspection. Again, this was in the presidential bound of authority. And Obama did the right thing in the end.
Some now want this president to be Andrew Cuomo, a heroically gifted advocate of marriage equality who used all his skills to make it the law in his state. But the truth is that a governor is integral to this issue in a way a president can never be. Civil marriage has always been a state matter in the US. That tradition goes all the way back; it was how the country managed to have a patchwork of varying laws on miscegenation for a century before Loving vs Virginia. The attack on this legal regime was made by Republicans who violated every conservative principle in the book when they passed DOMA, and seized federal control over the subject by refusing for the first time ever not to recognize possible legal civil marriages in a state like Hawaii or Massachusetts. Defending this tradition is not, as some would have it, a kind of de facto nod to racial segregation; it is a defense of the norm in US history. And by defending that norm, the Obama administration has a much stronger and more coherent case in knocking down DOMA than if it had echoed Clinton in declaring that the feds could dictate a national marriage strategy.
More to the point, until very recently, if we had had to resolve this issue at a federal level, marriage equality would have failed.
That basically captures the gist of what Sully is saying, and as I said, I think he’s right. There are several layers to consider here, when looking at the national battle for full marriage equality. Firstly, of course, are the various DOMA challenges working their way through the courts. The reason DOMA is flatly unconstitutional is precisely because it upends the states’ abilities to make their own marriage laws, as they always have, and have them recognized by the federal government. But the flipside of that coin is that in all other instances of marriage law, the various states recognize each others’ contracts. So, your Alabama marriage might be technically illegal in Massachusetts, but if you get married in Alabama and move north, the state of Massachusetts will recognize your marriage. However, if you are a gay couple from Massachusetts and find yourself faced with a move to Alabama, you have no such luck. The Constitutional principle being violated here is Full Faith and Credit, and the part of DOMA that violates it is Section 2.
You all know this. Barack Obama, a constitutional lawyer, also knows this! So when Obama says, “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,” I don’t see it as an endorsement of a completely federalist approach to marriage. For one thing, the words directly following those sort of negate the notion that he’s looking at it from a purely states’ rights point of view. Now, we already know that Obama and his Justice Department have judged Section 3 — the part preventing the federal government from recognizing a state’s same-sex marriages — to be unconstitutional. But for those of us who have become accustomed to the knowing smirk of Barack Obama, my feeling is that he is well aware that Section 2 is also unconstitutional, and that he knows exactly what is going to happen as these DOMA cases move higher and higher through the court system. Moreover, most of the most significant challenges so far have focused on Section 3. Yes, I know there’s a weird thing going on with the Department of Justice suddenly appealing the bankruptcy case that found Section 3 to be unconstitutional, but I’m suspecting a strange parsing of words in their original decision to stop defending the law is at play, and I’m still studying that one. Confusing, yes, and also bizarre, but I’m still not losing it. Let’s say I’m raising my eyebrows. More on the role of the courts in a minute.
The other major case making its little way through the court system right now is the Prop. 8 case, which has the potential to make waves far beyond the bigoted anti-gay marriage amendment passed by California voters. Anti-gay marriage amendments fall purely into the category of discrimination, by the states, for the states, differentiating them from DOMA, which deals with states’ relationships with each other and with the federal government. The judge in the Prop. 8 trial found California’s constitutional amendment — which is more or less the same as anti-gay marriage constitutional amendments in quite a few other states — to be a violation of both the Due Process and the Equal Protection clauses of the United States Constitution. The anti-gay side in that trial made a damn fool of itself, and continues to do so. At this rate, we have no reason to believe they will not continue to do so. The difference here is that, depending on how far up the case goes, and how narrowly or widely the Supreme Court rules, it could have a huge, possibly nullifying, effect on the anti-gay constitutional amendments of the other states. Now let’s revisit what Obama said directly after his comments on states’ rights:
In the meantime, we filed briefs before the Supreme Court that say any discrimination against gays, lesbians, transgenders is subject to heightened scrutiny and we don’t think DOMA is unconstitutional (sic – they do think DOMA is unconstitutional). So the combination of what states are doing, what the courts are doing, the actions we’re taking administratively, all are how the process should work…
Obama is right there on the record saying that discrimination against LGBT people is subject to heightened scrutiny, AND they think DOMA is unconstitutional. [Note that he did not specify which section of DOMA he was talking about.] The administration’s statements on heightened scrutiny apply both to the fights against anti-gay marriage amendments on the state level and federal laws like DOMA. This can be shortened simply, as Daniel Villareal said in his headline earlier today, to encapsulate Obama’s feelings on constitutional amendments banning marriage equality: “Of Course I Don’t Support Prop 8, You Dummies.”
Obama alluded in his statement to the idea that this process is working itself out on several fronts — state legislatures, court cases, the actions of his own administration that actually fall under his own set of responsibilities. President Obama simply cannot wave his magic wand and declare full equality for LGBT Americans. And I agree that it’s great that states like New York have used their legislative branch to move us forward. However, those who think that the civil rights of minorities should be solely left up to the whims of either voters or their elected representatives are idiots, as there comes a time in civil rights battles where the Supreme Court has to come in and gently explain to Mississippi that it’s time to stop playing with its own poop in the corner and join the other well-behaved children at the lunch table. [Can you imagine if we had waited around for Mississippi to deal with anti-miscegenation laws on a legislative level? My god.]
This brings us to why I think President Obama is deliberately being cagy on the subject of full marriage equality, at this point in time. Again, we all may not like it, but I do believe there is a method to the madness here. Going into the 2012 elections, the Obama administration is, unfortunately, more vulnerable than I think it should be, due to the economy, and due to the goldfish memories of many American voters, who do not remember where the shitty economy came from, but who simultaneously think that Obama should have been able to snap his fingers and fix it. And though the economy is improving, there are still a hell of a lot of Americans who are first and foremost concerned about the fact that they don’t have jobs. If that situation hasn’t improved much by the time next year’s election rolls around, he could be more vulnerable than we might have expected, especially if the GOP manages to nominate someone who at least doesn’t appear to directly communicate with their Evangelical Mothership on a regular basis. And believe me, the administration is conducting their own internal polling to figure out where they stand, especially in swing states like North Carolina, Ohio and Florida. These states all went for Obama last time, and they also each have a decent share of unhinged anti-gay bigots. Now, those bigots weren’t going to vote for Obama in the first place, but if they end up sort of not all that excited about their nominee [Romney, for instance], they might not be too excited about voting. Oh, but hell, if Obama is actually running around before the election, as Daniel Villareal said in the piece linked above, “guns blazing with a red, white, and blue hard-on for the queers,” I can imagine a scenario where that could tip one or more of those states into the red column. As it is, he’s letting the process play out and staying a bit above the fray, seemingly to me, to avoid handing the GOP that easy wedge issue going into the election. Now surely, he could come out for full marriage equality next week and prove me wrongity-wrong-wrong, but my gut just sort of says that’s where things are right now.
Back to the courts for a minute. Let’s say he wins in 2012 and then comes out fully supporting marriage equality. Lots of cases involving DOMA and Prop 8 and god knows what else that hasn’t even been filed yet, are going to find their way to the Supreme Court in the next few years. As the court stands right now, I believe, we have a delicate 5-4 balance tipping in our direction, emphasis on the delicate. Over the next few years, there will be a couple of Supreme Court retirements, most likely. Unless we luck out, I don’t think they’re coming from the conservative wing. Ruth Bader Ginsburg has pancreatic cancer, so she will be leaving the Court at some point in the near future, most likely. The other one who may possibly retire before too long would be Stephen Breyer. That’s about it. Barack Obama has a 100% record when it comes to appointing Supreme Court justices who seem to safely be on our side on these issues. If reelected in 2012, he’ll make either one or two more appointments, which will simply preserve the delicate 5-4 balance. If there’s a surprise conservative retirement, well, that looks good for us as our cases start making their way to the high court.
Let’s say he loses. Let’s say Mitt Romney or Michele Bachmann [doesn't make a damn bit of difference because the wingnut judge-making machine is in full flower, regardless of which GOP stooge sits in the Oval Office] is President, and just one of those judges retires. Setting aside the fact that the ladies of this nation can kiss Roe goodbye under that scenario, it also creates a fairly shitty situation for any cases involving DOMA, Prop 8, equal rights of any kind for LGBT Americans, and a host of other issues which, I always feel I have to remind single-issue gay voters, actually do exist. And that court is where so much of our equality will be ultimately decided.
I feel that Obama would like to be the one making those appointments, for myriad reasons. I am eminently more comfortable having Obama make those appointments. So the “process” goes as it goes for right now, and my gut feeling — I have always sensed that support for marriage equality would be a second term issue anyway — is that, as long as he is reelected, we’ll be in a pretty good situation, all across the movement, through the various court cases working their way through, to achieve full equality. If a wingnut takes the keys the Oval Office, all our work over the last several years could go directly down the tubes, and fast.
So that is my theory as to what game the Obama administration is playing. As I said before, surely I would love it for President Obama to hold a press conference where he announces that his “evolution” on marriage equality is complete, that he supports it wholeheartedly. That would be wonderful. But at the same time, everything I’ve written up to this point explains why I’m just not that worked up over the fact that he hasn’t said it yet. I sense that the Obama administration is playing the long game here, and I, as a young-ish politically involved gay American, am too. I’m far more concerned about the make-up of the Supreme Court in the year 2013 than I am about hearing those three special words from Barack Obama right now. They’d be nice to hear, but if I have to wait a little longer in order to make sure the gay community doesn’t get screwed sideways due to a stupid misstep, well, I’ll wait a minute longer. As I said before, it’s not like the President can wave his magic wand and give me full equality and a pony anyway.
Strategery! It’s part of politics. It’s not always fun, but it is what it is in the system that we have.