President Obama’s Unclear Position About Gay Marriage
Any claim that the President “clarified” his stance with his comments to Robin Roberts about gay marriage is negligent analysis. His thoughts on the legality of gay marriage remain as much a mystery now as ever.
Words mean things, and after 274 words the President finally got to this exact sentence:
“I think same sex couples should be able to get married."
Should be able to? While that expresses a personal preference about gay marriage, it portends absolutely nothing when trying to predict the former constitutional law professor’s position on whether the government has the power to prohibit it.
The President may simply be bringing his personal views in line with his church. In 2004 the President said the following in a debate with Alan Keyes:
"I'm a Christian, and so although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition and my religious beliefs say that marriage is something sanctified between a man and a woman."
His “religious beliefs” became at odds with his church. Trinity Church in Chicago, where the President was a congregant, is part of the United Church of Christ. The following year that church famously came out in support of gay marriage.
Offering him the benefit of the doubt, perhaps the President is simply coming to terms with the teaching of his church. Yet that tells us nothing of his legal understanding of government being allowed to prohibit gay marriage.
His recent comments do not make clear which of the following four groups he belongs to:
-There are people who have concordance in their religious/personal beliefs and legal views that gay marriage is prohibited.
-There are people who have concordance in their religious/personal beliefs and legal views that gay marriage is allowed.
-There are people who hold a religious belief or personal wish that gays should be allowed to marry while conceding that American law is structured so that government can prohibit it.
-There are people who hold a religious belief or personal wish that gays should not be allowed to marry while conceding that American law is structured so that government cannot prohibit it.
While the President stated his religious belief/personal wish, he did not clarify his legal position.
Even when examining his “evolution” on gay marriage in the courtroom it is not clear that his position has actually changed. In the beginning of his Presidency he defended the Defense of Marriage Act. Importantly, his legal briefs used the “rational relationship test,” the lowest possible standard for equal protection and the easiest test for the government to pass when limiting an act such as gay marriage.
In 2011 the administration decided to stop defending two lawsuits challenging DOMA. Note well - there were no briefs filed asserting a different legal standard that would elevate the importance of gay marriage as a civil right nor raise the legal standard government action would have to meet to prohibit gay marriage. Instead the government simply defaulted – didn’t show for the fight. That’s how one loses a case without committing to a change in legal position.
As the President said in 2004 his religious beliefs will not “dominate or determine” his political ones. While the President’s religious view or personal choice is interesting reading, it isn’t important at all versus his indistinct view of government power. That still remains a mystery.
He is seemingly a “state’s rights” adherent on gay marriage, having said also in 2004 that DOMA was unnecessary as the Constitution “does not prevent a state from refusing to recognize a marriage that is contrary to its own marriage laws." That might even explain his decision to stop defending DOMA.
However many people question his stated commitment to gay marriage being a state’s rights issue, as the President has expressed displeasure when the people of various states or their legislatures vote to ban gay marriage. That criticism might not be fair in one sense – to disagree with the outcome of a vote is not the same has disagreeing with the right of the people to hold a vote. On the other hand, the criticism of the President may be fair, as his obfuscation of his own views naturally invites suspicion of his sporadic and imprecise pronouncements on gay marriage.
Adding to that suspicion today is the reason the President gave to Robin Roberts for his evolution-ending conversion: A reward to his supporters. He did not say he came to this pro-gay marriage conclusion due to a religious conversion or a re-examination of constitutional limits. Instead, he framed it as reward for his gay staff and those in the military – a heartwarming offering I suppose but awfully insufficient as a legal premise.
Rather than Judge the President through my words you should judge him on his own, which follow. Observe while reading his avoidance of anything legal, supplanted perhaps by the use of the words “I” “me” and “my” which nearly double the frequency of all other words, making clear this is a statement of personal choice and not legal analysis:
"I have to tell you, as I said I've been going through an evolution of this issue. I've always been adamant that gay and lesbian Americans should be treated fairly and equally.
And that's why in addition to everything we've done in this administration, rolling back 'Don't Ask Don't Tell', so that outstanding Americans can serve our country whether it's not longer defending the Defense Against Marriage Act which tried to federalize what is historically been state law. I've stood on the side of broader equality for the LGBT community and I had hesitated on gay marriage in part because I thought civil unions would be sufficient ... that it would give people hospital visitation rights and other elements we take for granted. And I was sensitive to the fact that for a lot of people the word 'marriage' was something that evokes very powerful traditions, religions beliefs and so forth.
But I have to tell you that over the course of several years as I have talked to friends and family and neighbors when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together, 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."