fresh politicization of gay marriage

The question of whether a pair of homosexual adults ought to be able to enter a federally recognized marriage has been under debate for twenty years or so. Hawaii appears to have forced the issue in the early 90s with the interesting case of Baehr v. Miike. The Hawaii Supreme Court remanded a trial court dismissal of a suit alleging Hawaii’s ban on same-sex marriages was illegal. The Court found in 1993 that, because the ban was discriminatory based on sex, it was subject to “strict scrutiny” and hence the burden of proof that the law was sound rested with the state “by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights.” This led to a remarkably childish legislative and judicial back-and-forth which culminated in the People of Hawaii enacting, by a vote greater than two thirds, a constitutional ban in 1998.

At around the same time there had also been federal wrangling over the legal status of homosexuals. Bill Clinton campaigned in 1992 on ending fifty years of refusing to allow gays in the military, which was derailed in part by then-Joint Chiefs Chairman Colin Powell, leaving us with the widely reviled Don’t Ask, Don’t Tell (DADT) policy. In 1996, Congress enacted the dubious Defense of Marriage Act (DOMA), which federally codified marriage as being only between a single heterosexual couple on fears that the US would be forced to recognize Hawaiian gay marriages due to the Full Faith and Credit clause in its Constitution. Many states followed suit in the intervening years; at present, 42 states ban gay marriage, 31 of them through Constitutional provision.

By degrees, progress away from this fairly untenable position has been made. In 2004, Massachusetts became the first state to allow gay marriages after its Supreme Court ruled on Goodridge v. Dept. of Public Health in late 2003. The move became highly politicized and was cited as potentially winning George W Bush a second term in 2004. The reader may recall that Ohio was at play as a pivotal swing state that year, but a proposed state constitutional ban on gay marriages probably enhanced conservative turnout. Barack Obama campaigned in 2008 for a repeal of DADT, which he secured during the lame duck session of 2010 with some bipartisan support. Perhaps more interestingly, DOMA was found by a federal court in Boston to be unconstitutional in 2010, and Obama “instructed the Justice Department” in 2011 to stop defending the law’s constitutionality. This is a fairly extraordinary step since the Chief Executive is charged under Article II of the Constitution to “see that the laws be faithfully executed”; but there is a reasonable argument that this position is actually more consistent with Article II than defending the law would be since it very clearly runs afoul the Equal Protection clause.

That said, the President had long been a holdout on full gay marriage, instead championing civil unions. All that changed two weeks ago when Joe Biden appeared on Sunday to endorse full marriage recognition on NBC’s Meet The Press, prompting some to question whether he was aligning himself for 2016. Indeed, the popular trend on the question is unmistakable, and Obama himself was surely aware of that when he hastily scheduled an interview with ABC News on Wednesday after clumsy attempts to repudiate Biden. In the interview, Obama claimed that his views on the issue have been “evolving,” a position which does reflect his record (broadly speaking) but which unsurprisingly prompted ridicule. He nevertheless became the first sitting president to formally endorse gay marriage, which is just as historical as you want it to be.

What surprised me was the joyous reaction to this announcement. Here is a president who has long resisted marriage equality, much to the bemusement of persistent activists; who presided over a drawn-out repeal of DADT that was already in the political winds and over which he scarcely needed to lift a finger to get passed since it happened during the lame duck session at the close of 2010. Even Connecticut Senator Joe Lieberman, an utter waste of life and an enemy to all free people, supported the repeal. Now Obama’s forced into verbal advocacy of marriage equality by his foot-in-mouth VP (being further pressured by his Education Secretary) ahead of his planned announcement for the Democratic Convention this summer… and he’s a hero!

The most remarkable review came from Andrew Sullivan in Newsweek, penning this Monday’s cover story under the headline “The First Gay President.” Never mind that the honor in question almost certainly goes to James Buchannan, not Barack Obama (an apparently happily married father of two); the dishonesty is palpable. Glenn Greenwald documents how Sullivan, an apparent presidential shill, went from defending Obama from his detractors before the big announcement by arguing his position on marriage was either useless or irrelevant (“We will win not by begging presidents to back us… this desperate desire among some gays for some kind of affirmation from one man is a little sad”), to unqualified and freakish praise in the Newsweek piece (“to have the president of the United States affirm my humanity—and the humanity of all gay Americans—was, unexpectedly, a watershed”), even calling him a father figure. I suppose every father is only one man, after all.

Predictably, the Republicans have lashed out. Mitt Romney immediately reaffirmed his qualified disapproval of the legislative acceptance of homosexual relationships, and the surprising popularity of Santorum’s former candidacy suggests that opposing gay marriage will be a necessity for the GOP nominee to clear the convention. Obama’s flubbed plan to consummate his “evolution” at his own convention is evidence that the issue would have been politicized even if Biden had kept his big mouth shut; now it’s merely blown up sooner that it was going to. What’s truly sad is that politicians feel the need to play brinkmanship games with what ought to be an easily settled question of Constitutional law that also happens to enjoy majority public support. Look forward to this as a distracting issue later in the year.

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