Much to the consternation of many, rather than proffer a knee-jerk reaction to some controversial issues, I like to do a deep-dive to figure out and then try to put into context why certain things are done, are said, aren’t done or aren’t said. Many think this is an attempt to make excuses for the inexcusable. That’s what more than a few thought after reading “Same-sex marriage: Obama is not Cuomo — part I and part II.”
Well, I’m at it again.
In “Cold feet on gay marriage,” Dana Milbank notes this morning that gay men and lesbians who attended a fundraiser attended by President Obama last week were upset that he said “traditionally marriage has been decided by the states.” They couldn’t believe a president who is African American could parrot the argument used for decades to maintain the chokehold of second-class citizenship on blacks. And that anger was expressed this morning in the New York Times by Paul Yandura. “That language is really a dog whistle for the right,” he said.
In an excellent, must-read piece in MetroWeekly, a gay newsweekly here in Washington, lawyer and journalist Chris Geidner explains that those hearing dog whistles “fail to appreciate the legal foundation on which Obama’s comments are building,” which includes the role of courts. Those criticizing his praise of democratic debate fail to appreciate “the strength that Obama’s advocacy of deliberation provides for the house that marriage equality advocates have been building for decades.”
“[F]or 230 years there was a system in place where for purposes of marital benefits at the federal level and marital protections and marital responsibilities, the federal government deferred to state determinations of marital status.”
This argument, made by Mary Bonauto of Gay & Lesbian Advocates & Defenders, was a part of the case she successfully made before a federal judge in Massachusetts to explain why Section 3 of the Defense of Marriage Act is unconstitutional.
It is, therefore, a key piece of the LGBT legal organizations’ advocacy that Obama is invoking when he said on June 23 that '”part of the reason that DOMA doesn’t make sense is that traditionally marriage has been decided by the states.”
Geidner also address the criticism that Obama used the “states rights” argument to downplay the role of the courts in securing marriage equality.
What these critics of Obama’s invocation of the states’ role in deciding these issues fail to acknowledge is that, in encouraging decisions to be made at the state level, Obama is not suggesting that court action — even federal court action like the lawsuit challenging Proposition 8 — is not to be a part of that debate when necessary. He, in fact, included legal action in his June 23 speech, saying that states are “find[ing] the way forward” on the issue by “grappling” with it “in legislatures and in courts and at the ballot box.”
More importantly, these critics ignore the importance of Obama’s decision four months earlier that sexual orientation classifications are to be subject to judicial “heightened scrutiny” — and, thus, are presumed to be unconstitutional. Obama telling Congress and the federal courts that he believes heightened scrutiny should apply to sexual orientation-based marriage discrimination is important — as was seen earlier this month when a federal bankruptcy court in California found Section 3 of DOMA to be unconstitutional.
When Obama said on June 23, “There’s deliberation about what it means here in New York to treat people fairly in the eyes of the law,” it must be understood in light of the Feb. 23 decision about heightened constitutional scrutiny. In his view, the U.S. Constitution limits how states can conclude that deliberation.
I highlight Geidner’s piece and these passages not to make excuses for Obama but to put what the man is doing and saying in context. As we all know, the president has said that he is “evolving”on the issue. Unfortunately for him, patience has run out on his evolution and the bar has been raised on the leadership he needs to show. In light of the same-sex marriage victory in New York and the leadership shown by Gov. Andrew Cuomo (D), Obama’s position on marriage equality has become untenable.
