Obama's Choice

”I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages,” Barack Obama told Chicagoans in a letter to the Outlines newspaper dated Feb. 15, 1996.

One month later, on March 19, 1996, Obama became the Democratic nominee for the 13th State Senate District in Illinois – nominated along with President Bill Clinton, running for re-election on the ballot that day.

Barack Obama
(Photo by Ward Morrison)

It was only two months after that, on May 7, 1996, when then-Rep. Bob Barr (R) took to the floor of the U.S. House of Representatives to introduce the Defense of Marriage Act.

Two months later, on July 12, the House passed the bill – which defined marriage in federal law and purported to give states the ability to refuse to recognize same-sex marriages performed elsewhere – by an overwhelming 342-67 margin.

Without delay, the U.S. Senate passed the bill when it returned from its August recess on an 85-14 vote, and, on Sept. 21, 1996, with his re-election campaign in high gear, Clinton signed DOMA into law. In November, Clinton was re-elected easily and Obama won election to his first public office.

Nearly a decade later, Obama, running for the U.S. Senate in 2004, supported the repeal of DOMA and civil unions but opposed same-sex marriage for ”strategic” reasons.

”I am a fierce supporter of domestic-partnership and civil-union laws. I am not a supporter of gay marriage as it has been thrown about, primarily just as a strategic issue,” then-Senate candidate Obama bluntly told Chicago’s Windy City Times in 2004. ”I think that marriage, in the minds of a lot of voters, has a religious connotation.”

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Throughout his presidential campaign in 2007 and 2008, Obama heavily sought LGBT support despite still opposing marriage equality and, after being elected president on the same night that Proposition 8 ended marriage equality in the state of California, Obama continued pushing his LGBT bona fides. At a news conference in December 2008, Obama declared that ”it is no secret that I am a fierce advocate for equality for gay and lesbian Americans.”

Not even six months into his presidency, the difficulty of calling oneself a ”fierce advocate” was made clear when his Justice Department, led by Attorney General Eric Holder, filed a brief in Smelt v. United States, a challenge to DOMA, declaring at one point that ”DOMA does not discriminate against homosexuals in the provision of federal benefits.”

The outcry from the LGBT community was immediate – and harsh. Much discussion was had within the LGBT community and among political and legal activists about the wording of the brief and the impact of Obama’s Justice Department defending a law that he had called discriminatory by saying that it doesn’t discriminate. There remain differing views on the role of Justice in defending laws such as DOMA and the circumstances under which the department need not defend the law in question.

Regardless of those differences, however, the Smelt brief defending DOMA stood as a stark symbol to most people of the long way Obama had traveled from promising to fight efforts that would prohibit same-sex marriages. Some of that was a function of the distinction in the status of Obama as a citizen in Chicago and Obama as president of the United States. But some of it, with his history in mind, was a change in Obama as a politician.

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It also was a turning point in Obama’s relationship with many in the LGBT community. The caution bred by seeing gospel singer Donnie McClurkin, who has preached about ”curing” homosexuality, on the campaign trail and Pastor Rick Warren, who endorsed Proposition 8, at the inauguration turned into suspicion or even distrust. This was seen many times, most clearly in the lackluster LGBT response to the Obama administration’s action on hospital visitation and the animosity in some corners to the certification language in the ”Don’t Ask, Don’t Tell” compromise amendment.

Despite language in legal filings about the administration’s policy opposition to and support for repeal of DOMA and DADT in challenges to both laws, even White House senior domestic policy advisor Melody Barnes admitted in a meeting with LGBT reporters and writers in July, ”[W]hen there’s a filing it kind of scrapes at the scab one more time, and it reminds people of the posture of the government one more time.”

Regardless, since Barnes said that – and also could not answer whether Obama thinks DOMA is unconstitutional – federal judges on the East and West coasts have put a salve on the wounds, striking down Section 3 of DOMA and Proposition 8, respectively, as violating the Equal Protection and Due Process clauses of the U.S. Constitution.

U.S. District Court Judge Joseph Tauro, a Nixon appointee, ruled on July 8 that the federal definition of marriage contained in Section 3 of DOMA was unconstitutional in two cases, one – Gill v. Office of Personnel Management, brought by the Gay & Lesbian Advocates & Defenders – and the other – Massachusetts v. United States, brought by Massachusetts Attorney General Martha Coakley (D). U.S. District Court Judge Vaughn Walker, a Reagan appointee who is reportedly gay, meanwhile, struck down Proposition 8 in Perry v. Schwarzenegger on Aug. 4 for similar reasons.

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Obama and his Justice Department, however, have two very different relationships to the cases. It was a Justice Department lawyer who stood in Tauro’s courtroom defending DOMA’s constitutionality.

The case against Proposition 8, on the other hand, progressed throughout a three-week trial without any involvement on the part of the administration. This is not unusual; the federal government rarely involves itself with trial court proceedings involving state laws.

But, now, decisions have been reached in both lawsuits, and in both cases the judge held that these discriminatory laws are unconstitutional. As Walker concluded in striking down Proposition 8 in Perry, the law in question ”does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.” Tauro, in a way, was more blunt, concluding in Gill, ”As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection” guarantees of the U.S. Constitution.

The White House responses to both decisions were as different as their involvement in the cases. Spokesman Robert Gibbs has directed all inquiries about the DOMA challenges to the Justice Department, whereas the White House issued a statement the night of the Proposition 8 decision. Spokesman Shin Inouye told Metro Weekly in an e-mail, ”The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans.”

Then, senior Obama advisor David Axelrod on MSNBC on Aug. 5 told Savannah Guthrie, ”The president does oppose same-sex marriage, but he supports equality for gay and lesbian couples” – adding that Obama believes marriage is ”an issue for the states.”

Over the course of the next two or three months, however, marriage – whether Obama wants to deal with it or not – is very much going to be an issue for the Obama administration. What’s more, Obama did not hold and, from Axelrod’s comments, continues not to hold the view that most LGBT Americans and liberal activists wish he held.

Although Tauro has not yet entered the formal judgment in the DOMA cases – which starts the 60-day clock for the timeline of when the Justice Department would need to file the notice of its appeal – the Obama administration and Justice Department are doubtless already dealing with their response to the decisions. And, though they may not be thinking about it, they also should be thinking about their response to the Proposition 8 case.

The way in which Obama handles the appeals of these cases is likely to have a long-lasting, if not permanent, effect on his relationship with the LGBT community. As was clear at the LGBT media meeting with Barnes, communication – or the lack thereof – will be key. But, substance must underlie that communication if it is to be effective.

In addressing these cases, four substantive questions to be answered by the administration are:

Will the Justice Department appeal the decisions in Gill and Massachusetts, thus continuing to defend the validity of Section 3 of DOMA in the U.S. First Circuit Court of Appeals?

Of these questions, this is the only one where the administration needs to take an action. Because Tauro declared federal law unconstitutional in his decision, the Justice Department will need to file a notice of appeal with the court or send a letter to the Judiciary Committee explaining the reasoning behind why it is not appealing the ruling. This latter action was taken by now-Justice Elena Kagan when, as solicitor general, the determination was made not to appeal the Ninth Circuit’s ruling in Witt v. United States regarding the evidence needed to be proven in order to discharge an individual under ”Don’t Ask, Don’t Tell.”

It would be extremely surprising, in light of past actions and statements, if the Justice Department does not appeal Tauro’s rulings. As Barnes said at the July meeting, ”[W]e believe, the president believes, that given his office he has to defend the law.” The communication of the reason for doing so is important, though, and the White House and Justice Department’s reactive communications strategy regarding court filings will do it no favors if and when it files its notice of appeal in these cases.

The remaining questions – though simple in fact – would create nuances that require careful communications that have not been the hallmark of the administration’s work on LGBT issues, to say the least. Regardless, they are out there.

Will Obama take an individual position on the constitutionality of DOMA, and what is it?

This is the most nuanced of the three remaining questions. When meeting with Barnes in July, she told LGBT writers, ”[T]he president hasn’t made an argument around the constitutionality [of DOMA]. He’s said it’s discriminatory.”

Obama can, personally, hold a view that DOMA is unconstitutional while believing that, as president, he has a responsibility to enforce the law and, hence, appeal the DOMA decisions to the First Circuit. This is a fine line, though, and it understandably raises questions about other instances when presidents have refused to defend laws that they found to be unconstitutional.

If he chose to do so, Obama could say that while he believes it is unconstitutional and Tauro agrees with him, other judges have found otherwise. Accordingly, as the head of the executive branch, he believes the judicial branch is best suited to make a final determination about whether the law is unconstitutional. This is a risky position that is hard to articulate and unlikely to please many people because it risks appearing to be trying to please too many people.

Will Obama take an individual position on the constitutionality of Proposition 8, and what is it?

Obama has no obligation to defend the California Constitution. The near-immediate statement from the White House that Obama believes the measure is ”divisive and discriminatory” also belies any argument that he doesn’t want to comment on a state’s constitution. California is the only state where same-sex couples were being legally married and a popular vote took away that right. Obama, under that reasoning, could hold a view that Proposition 8 is unconstitutional without addressing his views on DOMA.

Will the Obama administration address its views on Proposition 8 to the U.S. Ninth Circuit Court of Appeals through the filing of an amicus curiae, or friend of the court, brief in any appeal of Perry?

If Perry is appealed and Obama does believe that Proposition 8 is unconstitutional, he could go a step further and direct the Justice Department to file an amicus brief to that effect in the Ninth Circuit. An amicus brief is an opportunity for a party not subject to a case to tell the court its views on the lawsuit, including any policy concerns or preferences.

If the reason for the Justice Department’s defense of DOMA, per Barnes, is premised on Obama’s view of his role as the head of the executive branch of the federal government, those constraints do not apply to an amicus filing regarding a state constitutional amendment. Moreover, many believe that Obama did not do enough to oppose Proposition 8 in 2008 when it was on the ballot. Opposing it in court now could give a much-needed shot in the arm to those LGBT supporters of his – and their allies – who are still looking for fierceness in his advocacy on behalf of LGBT issues.

Regardless of whether Obama or Axelrod believe or want it to be so, two judges in three lawsuits have put same-sex marriage front and center on the national stage. Pretending it not to be so is no answer, and failing to communicate more effectively and substantively about the administration’s actions and Obama’s positions regarding same-sex marriage could be disastrous.

Although Obama may say he no longer favors legalizing same-sex marriages, he has opposed restrictions on those marriages as discriminatory and promised to work toward equality for same-sex couples.

These have been his decisions; it is up to him to thread that needle.