Opinion Forum

President Obama Says That Same-sex Marriage Is Way Cool

May 12th, 2012

On May 9th, President Obama came out in favor of same-sex marriage; sort of. Acknowledging that it’s a matter of fairness that remains up to the states, he was planning to get around to it if and when convenient.

There is already excessive Federal involvement in marriage, including multiple tax and Social Security consequences; we don’t need more. Aside from that Federal involvement, I view marriage as an undertaking between two adults, often loving but sometimes not, that their friends and acquaintances can respect or not as they may wish. Several of our friends have long been in heterosexual relationships, yet for their own reasons continue to “shack up.” Never having asked couples to produce their marriage certificates, we know the natures of their relationships only because they volunteered the information. It is irrelevant to our friendships with them and seems to be so as well to the relationships they have with each other and to the friendships they, as couples, have with others. We also have several unmarried friends in same-sex relationships. That their genders can be easily noticed does not affect our friendships with them. We would respect them no more, and no less, if they were married.

Would anyone disrespect them on the ground that they are not married? Some apparently think so. The word “marriage” was held to be of critical importance in the California Marriage Cases. As I noted here, in his August 4, 2010 decision rejecting California Proposition 8 limiting marriage to one man and one woman, Federal District Judge Walker acknowledged that civil unions in California provide all of the tangible benefits of marriage that the state is capable of providing. However, he concluded that a mere civil union or other species of domestic partnership fails to

provide gays and lesbians with a status equivalent to marriage because the cultural meaning of marriage and its associated benefits are intentionally withheld from same-sex couples in domestic partnerships. (Emphasis added.)

Can the “cultural” meaning of a word be changed by altering the way it is used in official documents? Judge Walker concluded that the withdrawal, but only of the name “marriage,” (available to same-sex couples for only a few months before Proposition 8 had become effective) had been the product of hostility toward homosexuals, stigmatizing them as inferior to heterosexuals and accordingly undeserving of the full benefit of recognition uniquely afforded by the word “marriage.” That hostility had not been sufficiently great to result in the withdrawal of any of the previously conferred benefits of civil unions. Apparently, those in homosexual relationships in California would deem themselves less subject to hostility, and perhaps even in more loving and lasting relationships, if they could have “marriage” certificates instead of civil union papers and be “married” rather than civil unioned.

On appeal, a majority of the 9th Circuit appellate court panel held on February 7, 2012 that Judge Walker had been right and that withdrawal only of a briefly held right to use the word “marriage” had lacked any legitimate basis. It rejected as irrational all of the various bases presented by Proposition 8 proponents, including historic procreational and child rearing interests, traditional religious views of marriage and of morality. In dealing only with the situation it claimed to have before it, the majority did not reach the constitutional question of whether states must extend the marriage designation to same-sex couples receiving all of the tangible incidents associated with marriage. Judge Smith dissented in parts here relevant, arguing that the majority had applied an inapplicable standard of review. For anyone interested in reading the opinions, it would probably be best to read the dissent first; the majority opinion does not, in my opinion, deal adequately with the points it raises and they should be considered in evaluating the majority opinion.

Against that somewhat remotely relevant background, President Obama made a “gutsy call,” flip-flopping in stiff headwinds. Not really a flip-flop, it was instead deemed an “evolution” because he at least appeared to transition to a “liberal” stance. According to Roger Stone,

Once Gay Americans are through celebrating President Barack Obama’s “personal” support of Gay marriage equality, they will learn that Obama’s “evolution” changes nothing. Obama’s new position is a bullshit cop-out.

This comes on the heels of an [sic] cynical Obama campaign pirouette where Team Obama trotted out first Secretary of State Hillary Clinton then Vice President “Crazy” Joe Biden to say they support gay marriage and imply that the President would too–after the election.

Now, incredibly, Obama says Gay marriage is a state issue. That’s what they used to say about abortion and before that, slavery. Now Obama tells us that gay couples should be able to marry but he doesn’t believe they have a right to do so. Obama would leave the question to the states–in other words -the status quo. This is like saying that public schools ought to be integrated but if the people of Mississippi disagree, well he says, “let the states decide”

Clearly, it was a form of evolution. Will it turn out to be one furthering his political survival?

Since President Obama claims to agree that same-sex marriage is a state issue, at least it’s a rare area where his (current) position can’t reasonably be characterized as extreme. Nor is it a bold new departure; a year ago, he had announced that his administration would no longer defend the Defense of Marriage Act, defining marriage as between one man and one woman. Nevertheless, according to Diane Sawyer of ABC News, President Obama’s announcement that he supports same-sex marriage was an historic event — an announcement that no other President had ever gone forth to boldly make before. I have noticed little more than perfunctory upset about it in the conservative blog-sphere, more intensely focused on other concerns.

According to former Speaker Pelosi,

President Barack Obama’s embrace of same-sex “marriage” on Wednesday was not political “at all,” nor due to concerns over fundraising from the LGBT community….

While campaign funds are unimportant (yeah, right) to President Obama, his announcement does seem (only inadvertently, of course) to have helped his campaign fund raising; his campaign promptly sent out fund raising appeals based on it. Within ninety minutes of his announcement, “the campaign received $1 million in spontaneous contributions.” Might Vice President Biden’s earlier “gaffe” of announcing his own support for same-sex marriage have been part of the choreography? Why no! Impossible! Surely, President Obama would never (well, hardly ever) stoop that low. According to Politico,

Obama aides fretted that delay would dent his new-breed brand, and likewise that plunging in could weigh him down in battleground states. They even hatched a plan to announce his support just prior to the Democratic National Convention — a characteristically all-in-good-time solution that acknowledged the minefield he was walking through.

The pace of events necessitated a bit of damage control.

Multiple top Democrats said senior Obama aides were deeply annoyed with Biden for forcing the conversation on same-sex marriage earlier than planned. These officials said Biden had, in the past, advised the president against coming out in favor of same-sex marriage because of the potential political downsides, making it all the more frustrating, multiple sources said.

Despite this, President Obama is a forgiving sort and is not unhappy that Vice President Biden preempted him.

“He probably got out a little over his skis, but out of generosity of spirit,” Obama told ABC’s Robin Roberts in an interview that aired Thursday on Good Morning America. “Would I have preferred to have done this in my own way on my own terms without, I think, there being a lot of notice to everybody? Of course. But all’s well that ends well.”

As Roger L. Simon argues here, the announcement is yet another diversion from our many (evidently trivial) domestic and foreign problems oddly seen by some as far more important. President Obama needs all of the diversions he can save or create. Along with with the current recession, President Obama may want us to forget about all distractions that could damage his reelection prospects and his legacy of great works such as ObamaCare. Still, his (possibly first, if one credits the source) “gutsy call” may attain historical significance right up there with such crucial efforts as Federal limitations on school bake sales and bullying (except for a good cause).

While the substantive impact of his announcement may be only transitory, this part of his historic statement will probably endure:

“When I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that Don’t Ask Don’t Tell is gone, because they are not able to commit themselves in a marriage, at a certain point I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married,” said Obama. (Emphasis added.)

It may seem a bit odd to have claimed that military personnel had been fighting on his behalf, even for his previously announced, withdrawn and then re-announced support for same-sex marriage; however, in their hearts they must have known that he would get around to it if and when convenient. Having been personally in harms way, most recently in Afghanistan, President Obama knows full well how they feel.

Same-sex marriage per se is low on my list of major concerns. The Constitution does not mention same-sex marriage; nor, for that matter, does the word “marriage” appear there in any context. That suggests that if marriage was considered at all when the Constitution was written, or thereafter as it was amended, marriage was among the matters thought best left up to the States under Article X. Another term in office for President Obama, with post-reelection flexibility to “evolve” without constitutional or congressional constraints, is pretty close to the top of my list of concerns.

The fruits of post-reelection flexibility to “evolve” may be abundant. The Washington Post observes,

[J]ust as President Lyndon Johnson became a champion of civil rights for African Americans with the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, Obama could become a champion of LGBT rights by endorsing legislation or signing an executive order that would forbid states from discriminating against LGBT couples. Marriage equality should be enshrined in our U.S. Constitution, which would take congressional action and public will and support. Obama can’t do it alone.

The Democrats and Obama should now capitalize on the increasing public support for same-sex marriage by taking the bold move of making marriage equality part of the Democratic presidential platform. This would send a clear and resounding message against “separate-but-equal” treatment of same-sex couples.

It will take federal and executive intervention to keep states like North Carolina from denying LGBT couples important entitlements such as Medicaid, Social Security, tax breaks and federal retirements benefits. It is of further significance that Obama, an African American, can serve as a bridge of understanding who could encourage greater tolerance in the black community — which highly regards the president — on the issue of same-sex marriage.

Obama’s action is historic on many levels. He should now give his public endorsement of marriage equality the legal weight, force and legitimacy of executive orders and party platform recognition. (Emphasis added.)

Perhaps if a reelected President Obama decides to bypass the courts and the Congress to go the already well trod executive order route, he might wish to use highly suitable American Flag doormats at the White House; they are available from Lowe’s, although at least one store removed them from display “because of complaints.” President Obama’s people can surely find enough somewhere; China would be honored to provide as many as might be needed. The American Flag chosen would probably not be the one shown at the right; it would be unpatriotic to walk on a picture of President Obama. Perhaps a Constitution-themed doormat could be made just for him. He would probably not want it, however, because it would be more difficult to shred than the old fashioned parchment and paper versions.

(This article was also posted at Dan Miller’s Blog.)

Articles written by Dan Miller
Tags: Constitution, executive orders, marriage, same-sex, satire, states rights
Categories: Law, News, Politics | Comments (2) | Home

2 Responses to “President Obama Says That Same-sex Marriage Is Way Cool”

Tom Carter | May 12th, 2012 at 2:20 pm

Dan, it’s amazing that such transparently cynical political posturing has been accepted by many people as normal and natural.

On gay marriage, I couldn’t agree more that “same-sex marriage per se is low on my list of major concerns.” It doesn’t hurt me or, far as I can tell, anyone else. It’s like a lot of other things that people personally object to — if you don’t like it, don’t do it.

However, there are a few things you noted that come like a discordant note in an otherwise reasonably well-played recital:

— American troops are fighting on Obama’s behalf? I heard him say that live, and my instinctive thought was, “What an arrogant ass!” Time to send this jerk back to Chicago or the UN or wherever he plans to do his post-presidential pontificating.

— Obama believes that gay marriage should be a state issue? Well, yeah. Just like abortion should be a state issue, absent the eureka of a previously undiscovered penumbra in the Constitution. Does this supposed constitutional scholar have a clue about federalism?

— The Washington Post believes that Obama can issue “an executive order that would forbid states from discriminating against LGBT couples?” Where, exactly, would that power be found in the Constitution?

Gay marriage is OK with me, and I’m pro-choice within practical limits. But that’s not what all this is about. It’s about political cynicism and manipulation, unleavened by respect for our system of government.

Dan Miller | May 12th, 2012 at 2:44 pm

The one “good” thing about the “flexibility” of a reelected President Obama is that there would be lots of scary things about which to write. However, I shall more than happily forgo those opportunities.