President Obama says that his views of same-sex marriage "are evolving." That's a pretty carefully crafted accommodation to the political reality he is in.
Some years back as a state senator, I believe, he made a statement that seemed supportive of gay marriage; at least it hinted at it. Later running for president he said that his personal view was that marriage was for a man and a woman. Then he came out against DOMA -- but then one can be against DOMA without being pro-marriage for gays and lesbians.
His latest position is that it should be left up to the states, and that the way New York did it was the right process. I think we can read into this that he is saying that, although he might not personally approve, he supports the states' right to decide.
Of course, he's in a re-election campaign where he has to fight against a powerful, conservative mis-information machine that will demonize him from A to Z. Coming out fully for gay marriage would simply put one more nuke in their arsenal. So this position is just fine. I believe after the election, he is likely to "evolve" further and reveal his full support.
But this raises for me the puzzle. I have no idea what the rationale is for deciding what issues the states have sovereignty over and what are federal prerogatives. I know about the interstate commerce clause that is the justification for lots of federal regulations and laws that over-rule state laws. And of course there is the bill of rights.
Common sense would tell me though that something as basic as the freedom from discrimination and the right to marry should be the same for all citizens of the United States, just as the other freedoms are. We don't allow states to discriminate against people for race, religion, ethnicity, or disability. Abortion seems a hybrid. We have Roe v Wade to protect the basic right of a woman to choose; but we allow states to chip away at the edges to a crippling degree.
But sexual orientation and marriage -- a different story. It's still not generally accepted that there is a "right to marry," even though the Supreme Court said there was in the 1967 Loving v Virginia decision that eliminated laws against marrying someone of another race.
I guess it's the lag in bringing our laws in line with changing social mores and attitudes. But it just doesn't seem right for generations to have to wait. My prediction is that this is the place that social and attitudinal change will ultimately influence the lawmakers and bring action at the federal level. Getting rid of DADT and DOMA will help move that along.
Ralph
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The reality of all this is that it is not a matter of legal rights or of logic. If it were, this would long ago have been settled.
ReplyDeleteIt's a matter of practicality: the whole process needs to move at a pace that doesn't get too far ahead of the public's willingness to be led. Gradual changes in laws, state by state, builds up support -- and there will come a tipping point.
I suspect that it will go like this. New Jersey, Maryland, and Rhode Island will reconsider their bills in the next couple of years and maybe pass them. That will be 9 states. Maybe one or two more might also: Washington, Oregon. Possibly Illinois.
Then in a couple of years, the Prop8 appeal will reach the U. S. Supreme Court -- and that will be the big chance. It will be close, unless one of the conservative justices leaves and is replaced by Obama. In the past Kennedy has been the swing vote and has been with the majority in two major gay rights cases. Lately he's been reliably siding with conservatives. So that's the big unknown.
Anyway, the end seems in sight. I hope I live to see it. I never expected gay rights issues to get nearly this far in my lifetime.
We shouldn't push for the Prop8 appeal to get to the Supreme Court sooner. The worst thing would be for them to decide negatively. That would be as big a set-back as this NY decision was a leap forward.
ReplyDeleteCornell Law professor Michael Dorf, who studies the legal and social consequences of same-sex marriage, said the following:
ReplyDeleteCourts are wary of making decisions too far outside the mainstream of public opinion. This New York law will help to tip that balance for future court decisions.
The opposition's main argument has been that this is too radical, incompatible with social mores. Because New York has such a large population, this argument is undermined.
Dorf predicted that we are "in the course of rapid change" and that: "It seems inevitable that we'll have same-sex marriage in most of the states within a decade.''