Obama Flips

It’s entirely fair to ask Barack Obama what he thinks about same-sex marriage. It is not difficult to foresee President Obama called upon to sign or veto a bill repealing the Federal Defense of Marriage Act. Someone who thinks this issue is important may be persuaded to vote for or against him based on what he says he would do in such a situation. What’s more, as President, he could veto a resolution of Congress that would propose a Constitutional amendment outlawing same-sex marriage. Indeed, as a Senator, this year, he may be called upon to vote in favor of or against passage of such a proposed Constitutional amendment.

So what does the heavy front-runner think about the issue? Well, back in the primaries, Senator Obama was against same-sex marriage, but in favor of civil unions giving all the same rights. In March, he said:

I don’t think it [a same-sex union] should be called marriage, but I think that it is a legal right that they should have that is recognized by the state. … If people find that controversial then I would just refer them to the Sermon on the Mount, which I think is, in my mind, for my faith, more central than an obscure passage in Romans.

He has also said that the states should make their own decisions about the issue and been caught flat-footed when challegned to justify his “separate but equal” position.

But Obama the federalist seems to be reversing himself. Today, he announced his opposition to the California initiative to amend the state’s constitution so as to reverse The Marriage Cases. In a letter to the Alice B. Toklas LGBT Democratic Club of San Francisco, Obama wrote:

…That is why I support extending fully equal rights and benefits to same sex couples under both state and federal law. That is why I support repealing the Defense of Marriage Act and the “Don’t Ask Don’t Tell” policy, and the passage of laws to protect LGBT Americans from hate crimes and employment discrimination. And that is why I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states.

I’m not criticizing Obama’s position. I agree with what he said to the Toklas Club. I think he’s right to oppose the initiative, I think he’s right to push for full equality for gays and lesbians. I applauded and continue to applaud the California Supreme Court for its opinion in the Marriage Cases. I think Title VII should be amended to include sexual orientation as a basis for an actionable discrimination claim. I think DOMA should be repealed and gays should be able to serve openly in the military.

If this puts me in opposition to Republicans and conservatives, political groups with whom I usually identify more readily than I do Democrats and liberals, so be it. If that is the case (as it sometimes appears to be), then I say that those Republicans and conservatives who disagree with me are not only morally wrong, but they are making a significant and short-sighted political miscalculation. Both history and the electorate will be kind to those who advocate on the side of tolerance and acceptance, and it will condemn those who would push the political process towards the opposite of those ideals.

I write about the issue as much as I do because I think it is the most important civil liberties issue in the political atmosphere. The Constitution, and laws of this country are fundamentally dedicated to individual liberties; indeed, it was a dedication to individual liberties that led our Founding Fathers to commit treason against King George and take up arms in defense of the cause of freedom. The use of the law to repress the liberty of a minority, justified by bigotry is morally obnoxious. The bloodiest war in our history was fought over that very principle.* And anti-homosexual bigotry is one of the most prominent ways that a lot of Americans are still overtly and in many cases unapologetically prejudiced, and I think that’s wrong. I think this prejudice is often cloaked in religion. Not being religious myself, I think this is a pretty lame excuse for bigotry. But I also realize that religion can be a powerful force for moral good — particularly the teachings of Jesus of Nazareth, who if he stood for anything stood for the noble and ethically compelling imperatives of love, tolerance, and forgiveness. I write about this issue as much as I do because as a member of the legal profession, I think I share a duty with my brother and sister attorneys to make the law better, to make the law a force for good in society. Sometimes that means using the law to combat bigotry, to push our society towards realizing its own ideals even when segments of that society are reluctant to take those steps. So I think that same-sex marriage is, even if statistically not significant, an important benchmark for our society’s willingness to tolerate and accept gay people within our ranks and to eliminate the prejudice that cowers under the cloak of religion.

No, I’m not criticizing Obama for taking a position that agrees with my own. Rather, I’m criticizing Obama because he seems to be twisting in the political winds, on a matter of huge symbolic importance. If he’s against marriage but in favor of civil unions, well, that’s an intellectually defensible position, but he seems to be glossing over his earlier stance in favor of a different one.

Now, he’s in favor of same-sex marriage where before he was opposed to it. What’s more, he’s suggesting that DOMA should be repealed, and whatever the merits of that position, it is one that indicates his belief that the Federal government should not allow the states to decide the issue for themselves on a state-by-state basis. Obama the pro-civil-union federalist has turned in to Obama the nationalist.

As Ed Morrissey points out, if this is a sign that he hasn’t thought the issue through very well, that’s the hallmark of someone who isn’t prepared to address the issue on the national scene. I don’t think that’s true although I think that Morrissey wants to push the “inexperience” angle.

Seems more likely to me that this is a sign of his desire to cleave to a position that is to his immediate political advantage despite its apparent contradiction to a prior position he took on the same issue. The problem is that this sort of Clintonian/Romneyesque flip-flop renders his true opinions on the issue a cipher. It’s also a bit disappointing to see a constitutional law professor, someone who is uniquely positioned to demonstrate that he takes civil liberties seriously, instead treat the most prominent civil liberties issue of the day as a political football instead of a chance to make a stance on principle.

This isn’t “change.” It’s the politics of yesterday, not the politics of the future. It sours me on Obama the politician even as I like his most recent position on the issue, because it makes me doubt the sincerity of his position.

I also think his apparent flip-flop on the issue is worthy of further discussion and comment including, of course, defenses of his position from his apologists, if any there be.

POSTSCRIPT: I’m apparently not the only one to be moderately pleased by Obama’s position but more powerfully befuddled by his double-talk on the issue.

* I know that there are Confederate apologists out there who will insist that the Civil War was not fought over slavery but rather over larger principles such as state’s rights, or in the alternative over things like tariffs. This has always struck me as decidedly cynical revisionism. The typical Northern soldier was recruited through, and fought for, his moral objection to slavery. The political leaders of the Union, from Lincoln on down to the dogcatcher, varied from one another only in the intensity of their moral objections to slavery and the political expediencies they thought advisable to ultimately eliminate it. And these were the men who won the war, which means their opinions count for more than the men who lost. We are typically unconcerned with vindicating the political justifications of the losers of any other war and the Civil War should be no different.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.