Obama Evolves

The President has finally come out of the closet, politically speaking, on legal same sex marriage. From ABC News:

President Obama has abandoned his longstanding opposition to same-sex marriage but says the decision on whether or not to legalize the unions should be left up to individual states, which are "arriving at different conclusions at different times"…

"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," he said.

As positions go, this one is reasonable. It must be, because it is my position. I think that legal same sex marriage is pretty much inevitable and I think that it is the right thing to do. I do not, however, believe that the US Constitution requires it nor do I believe that it should be imposed on the states by Congress.

The President describes his views as "evolving". Revolving would be more like it. In 1996 he was on record as being all for same sex marriage and opposed to efforts to ban it. In 2004, running for the US Senate, he said this:

"I'm a Christian," he said. "I do believe that tradition and my religious beliefs say that marriage is something sanctified between a man and a woman."

Now he has come full circle. Much the same thing must be said about Mitt Romney, who was all for same sex marriage before he was against it. Call me a cynic, but I suspect that the evolution of both men had a lot more to do with political calculations than with genuine soul searching.

If there is a difference here, it is this. I have no idea what Mitt Romney really thinks about this issue, but I have a pretty good idea what he would do. He would do nothing. He won't try to reverse the ban on homosexuals in the military. He won't try to use federal power to coerce the states in one direction or the other.

I have a pretty good idea what Barack Obama thinks. I don't believe he has ever been really opposed to same sex marriage. What I don't know is what he will do once safely reelected. Will he respect the right of states to decide the issue, as he suggests in his ABC interview? Or will he use every power at his disposal to try to compel the states to drop their opposition? Whither will he evolve next? It would be nice to know.

What I do know is that Obama's position is logically at odds with the actions of his own Justice Department. Here is Jonathan Adler at the Volokh Conspiracy:

The problem with the President's position is that it cannot be reconciled with the Administration's stance on the constitutionality of the Defense of Marriage Act. According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended. In their view, because DOMA precludes federal recognition of same-sex marriages, it violates the constitutional guarantee of equal protection under the Fifth Amendment. Further, according to Holder's statement, they concluded that no "reasonable" constitutional argument could be made in DOMA's defense.

Yet if DOMA is unconstitutional under equal protection, which applies to the state and federal governments equally, then how could any state law barring recognition of same-sex marriages survive constitutional scrutiny?

In other words, while the President says he believes that states should be allowed to reach "different conclusions at different times" on the question of same-sex marriage, the administration's legal position is that a state's refusal to treat opposite-sex and same-sex couples alike is unconstitutional. So while the President may say he'd like to leave this question to the states, that's an option his administration has already taken off the table.

Once again we are faced with a choice. Either this former constitutional law professor doesn't understand what his own administration is doing, constitutionally speaking, or he is not being candid about it.

Six states allow legal same sex marriage. In several cases this has been the result of court action. Thirty states have laws that confine marriage to a union between a man and a woman. All of them have been passed by popular vote. Apparently, a lot of people do not share the view that I hold and that the President professes.

To be sure, this is a Republic and not a democracy. The Constitution controls popular majorities as much as it controls the President and Congress. Is this a case where the people ought to be overruled? I think the people of North Carolina and the people of South Dakota ought to know what the President will do on this score. His personal feelings are irrelevant. What matters is what he intends and is prepared to do. All we know right now is that he says one thing and does another.

Comments

[larry kurtz]

Read 'em and weep, Doc: you earth hateres are finished.

[larry kurtz]

I've seen 2012 voting models where the President takes 47 states in a landslide and earth haters are thrown from Congress. Even Texas could go for Obama.

You bozos are so last century.

[larry kurtz]

Romney is serial bully who makes up history as he clutches and clambers for power:

http://www.queerty.com/romney-didnt-stop-bullying-as-a-kid-went-after-lgbt-youth-commission-as-gov-20120511/

http://www.npr.org/2012/05/11/152466134/same-bible-different-verdict-on-gay-marriage

[Bill Fleming]

My hunch is this will be settled at the SCOTUS level. Olson and Boies v California's Prop 8.
If the freedom to make a choice as to who one wants to marry isn't a fundamental human right, then what is it?
http://www.theprogressiveprofessor.com/?p=18420

[Stan Gibilisco]

"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," he [Barack Obama] said.

Why didn't he say "I now belive that same-sex couples should be able to get married"?

President Obama isn't the only politician guilty of this watering-down, thus dilution of force. Hillary Clinton is just as bad; so is Mitt Romney; so was George W. Bush. Ach, I guess that's why I love listening to Joe Biden. He calls a rose a hell of a flower, and spade a doggone dirt-diggin' tool.

[Ken Blanchard]

Stan: you are right. Everyone is all over the place.

Bill: There is no right to marry whomever one chooses. Should first cousins be allowed to marry? Probably not. But that is a judgment call to be made by legislatures. Can a man marry a woman who is sixteen years old? How about fourteen? These are judgment calls.

I doubt that the High Court will decide the matter. Short of some change in the balance, the Court will leave it up to the states, as it should.

[Bill Fleming]

I will argue that the right to choose is there and that the laws restrict it, KB. I don't believe laws bring human rights into existance. I believe the those rights come before the law, and can only be more or less secured by it.

[Bill Fleming]

A SCOTUS ruling would likely be that SSMs cannot be banned, thus overiding all the State bans. The States would then decide the semantics.

[Stacey Hanrahan]

Obama's evolution or devolution on this issue didn't change the political landscape. All it did however was excite Obama's base and coalesced Romney's. I agree that gay marriage should be best left to the states. A SCOTUS ruling on this issue would amount to judicial tyranny. Ironically enough, the states where gay marriage is legalized was decided by judicial fiat who had decided that the will of the American people was irrelevant.

[Ken Blanchard]

Bill: we both believe in natural rights, apparently. However, if the law does not bring rights into existence, it does bring marriage into existence. Even if there is a natural right to marry, you agree that the law can restrict it. The question then is whether this restriction is valid or not. There is nothing in the history of constitutional law that indicates a right to same sex marriage.

We would both vote to legalize same sex marriage. Our difference is that, like most people on the left, you want to write your every political preference into the rule book.

[Saul]

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