First published in the Bay Area Reporter on
July 17, 2008
In a recent statement, Barack Obama said that he rejects "the
divisive and discriminatory efforts to amend the California
Constitution" and similar efforts in other states. At the same
time, Obama has repeatedly said that he opposes gay marriage. While
his views are perplexing as a matter of logic, this episode reminds
us that Obama is, after all, a politician who's trying to get
elected. It also says a lot about the progress the Democratic Party
is making toward full support for gay marriage.
Obama opposes the proposed amendment because, he says, it is
"discriminatory." But how is it any more discriminatory than his
own position? He believes that marriage is between a man and woman;
the proposed amendment says that marriage is "between a man and a
woman."
Is there any way to reconcile his opposition to gay marriage
with his opposition to the California amendment? I can think of
three ways possibilities.
First, one could oppose writing the traditional definition of
marriage into the state constitution - as opposed to state
statutes. This would leave the state legislature and governor with
the power to decide whether to recognize gay marriages at a later
time.
The problem with that is that the state supreme court
effectively wrote the new definition into the state constitution,
removing this very power from the state legislature and the
governor. If you oppose gay marriage on policy grounds, there is
now no way to implement your view except to constitutionalize it by
amendment. The state supreme court has left you no choice. And in
California, because it's so easy to amend the state constitution,
you're free to support a repeal at a later date if you change your
mind on this issue. You don't have to worry that you are erecting a
supermajority barrier.
Next, since gay marriages are a fait accompli for the next few
months, even if you oppose them you might not want to undo the
interim marriages (which is a possible effect of passing the
amendment) or, more abstractly, "take away rights."
This would be an incredibly generous reason for a real opponent
of gay marriage to oppose the California amendment. The number of
interim marriages will be small in absolute terms, the marriages
exist only by mandate of four judges, they are entered with notice
that they may be nullified in a short time, and the cost of losing
on the ban will be many more such marriages into the indefinite
future. But if Obama is such an extraordinary anti-gay-marriage
altruist, he does not give this as a reason for opposing the
amendment.
Finally, a gay-marriage opponent who supports civil unions (like
Obama) could vote against the California amendment on the ground
that it might also be interpreted to eliminate the state's
domestic-partnership system, which, like civil unions, grants all
of the state-conferred legal rights of marriage to gay couples.
This risk might be intolerable if you weakly oppose gay marriage
but strongly support domestic partnerships or civil unions. I think
it is unlikely that the amendment will be interpreted by the
California courts to eliminate the state's domestic-partnership
system, but the risk is above zero. However, once again, Obama does
not offer this as his reason for opposing the amendment.
So what's really going on? There are probably two things
happening. First, I don't think Obama really opposes gay marriage
deep down and I suspect he does see the exclusion of gay
couples as a kind of discrimination. He has never been able to
explain his reasons for opposing gay marriage - which is very
revealing for a man who's otherwise unusually thoughtful for a
politician. He just says, basically, I oppose gay marriage "because
I say so." So calling the amendment "discriminatory and divisive"
may be a ray of candor cutting through the fog of a political
campaign.
Second, and probably more importantly, this is an instance where
politics necessitates cognitive dissonance. Gays and those who
support gay equality are a critical constituency in the Democratic
Party. Obama can't keep the gay-friendly base happy and support the
amendment, which is rightly seen by them as involving huge stakes
for the gay-marriage movement. But at the same time he figures that
he can't openly support gay marriage because that might mean losing
the election. He is winking and nodding to both sides.
Don't get me wrong, I'm grateful for Obama's opposition to the
amendment. It might actually help sway some of his socially
conservative black and Latino supporters, who will vote in large
numbers in California in November. But then, I support gay
marriage. If I opposed it, I'd probably be either mystified or
angered by Obama's words.
Obama's explanation for why he opposes gay marriage and
opposes the proposed California amendment banning it can't be
squared as a matter of logic. It's a matter of politics, which
reminds us that for all the hype about hope Obama is still a
calculating politician.
It also says something about how much things have changed in a
short time. We've gone from the Democratic presidential nominee in
2004 opposing a federal amendment banning gay marriage, but also
opposing gay marriage itself on policy grounds and
supporting state constitutional amendments to ban it, as John Kerry
did (and as John McCain now does); to a Democratic nominee in 2008
who says he opposes gay marriage, but who's uncharacteristically
unable to explain why, and who opposes the only way to prevent it
from becoming a permanent reality in a state of forty million
people; to, I predict, a nominee in 2012 or 2016 who will say he or
she personally favors gay marriage but adds that the
president has no role in the decision because this is an issue that
should be left to the states.