[An earlier version of this story was posted at 12:13 p.m. June 27, 2011.]
In the past week, LGBT advocates, activists and analysts have found significant fault with President Barack Obama’s failure to endorse marriage equality – asking him to “evolve already.” For a former constitutional law professor who is himself the personification of the successes of civil rights advancements, the criticism is striking.
It is, however, a self-inflicted wound, born of the path he has chosen to pursue.
Obama opposes amendments that pull back equal marriage rights or add state constitutional restrictions on same-sex marriage. He believes that Section 3 of the Defense of Marriage Act – the federal “one man, one woman” definition of marriage – is constitutionally indefensible. And, as he said in his speech before about 600 high-dollar donors at the LGBT Leadership Council Gala on June 23, “I believe that gay couples deserve the same legal rights as every other couple in this country.”
Yet, he has not said that he personally supports marriage between same-sex couples and the last time he spoke directly about the matter – in response to ABC's Jake Tapper at a presidential news conference held on Dec. 22, 2010 – he reiterated a previously stated position: “As I’ve said, my feelings about this are constantly evolving.” In fact, when asked on Wednesday, June 29, by The Wall Street Journal’s Laura Meckler, Obama said, “I’m not gonna make news on that today.”
When there is no evolution on that one remaining question, criticism is bound to follow – particularly if Obama wants to continue to be seen as a leader on LGBT equality issues.
Although such criticism is well grounded, some have gone further, attacking Obama’s recent comments agreeing with what some are calling a “states’ rights” argument that they say was used by segregationists in the past.
Unfortunately, those criticisms fail to appreciate the legal foundation on which Obama's comments are building, or the strength that Obama’s advocacy of deliberation provides for the house that marriage equality advocates have been building for decades.
“[F]or 230 years there was a system in place where for purposes of marital benefits at the federal level and marital protections and marital responsibilities, the federal government deferred to state determinations of marital status.”
This argument, made by Mary Bonauto of Gay & Lesbian Advocates & Defenders, was a part of the case she successfully made before a federal judge in Massachusetts to explain why Section 3 of the Defense of Marriage Act is unconstitutional.
It is, therefore, a key piece of the LGBT legal organizations’ advocacy that Obama is invoking when he said on June 23 that “part of the reason that DOMA doesn't make sense is that traditionally marriage has been decided by the states.”
What these critics of Obama's invocation of the states' role in deciding these issues fail to acknowledge is that, in encouraging decisions to be made at the state level, Obama is not suggesting that court action – even federal court action like the lawsuit challenging Proposition 8 – is not to be a part of that debate when necessary. He, in fact, included legal action in his June 23 speech, saying that states are “find[ing] the way forward” on the issue by “grappling” with it “in legislatures and in courts and at the ballot box.”
More importantly, these critics ignore the importance of Obama's decision four months earlier that sexual orientation classifications are to be subject to judicial “heightened scrutiny” – and, thus, are presumed to be unconstitutional. Obama telling Congress and the federal courts that he believes heightened scrutiny should apply to sexual orientation-based marriage discrimination is important – as was seen earlier this month when a federal bankruptcy court in California found Section 3 of DOMA to be unconstitutional.
When Obama said on June 23, “There’s deliberation about what it means here in New York to treat people fairly in the eyes of the law,” it must be understood in light of the Feb. 23 decision about heightened constitutional scrutiny. In his view, the U.S. Constitution limits how states can conclude that deliberation. Obama said as much at his news conference on June 29, characterizing the administration’s position before courts as being, “We think that any discrimination against gays, lesbians and transgenders is subject to heightened scrutiny.”
That Obama wants public deliberation over marriage at all also is seen by some as a subject worthy of criticism. But, that position recalls the work of Evan Wolfson, who founded Freedom to Marry and, since 1993, has been pushing, as he told Metro Weekly earlier this year, “political organizing and public education and all kinds of other efforts outside of the courtroom” to help achieve marriage equality. It was the need for public education and discussion around marriage equality that led Wolfson to leave Lambda Legal and start Freedom to Marry.
Deliberation is a part of achieving, as Obama put it at the LGBT Gala, “change that is lasting.” Or, as another trailblazing politician, Barbara Jordan, put it 35 years ago next month at Madison Square Garden, “We are willing to suffer the discomfort of change in order to achieve a better future.”
The “discomfort of change” is not just borne by those fighting or otherwise opposed to marriage equality – but also by those seeking the change, who must be willing to discuss and educate for far longer than seems necessary, about the reasons why same-sex marriage bans are not only constitutionally indefensible but also wrong for the country.
The discomfort also must be borne by Obama, who must be prepared to be questioned constantly – as he was on June 29 – about the status of his “evolution” until it is complete. Wolfson, looking at the various steps Obama already has taken, wrote this week, “[T]he President is now on the record as strongly against against the freedom to marry. The problem is he has not been forthrightly for the freedom to marry, and ‘against against’ just doesn't cut it from the President – morally or politically.”
Obama’s personal evolution has stalled at a time when the world – including Obama’s administration – continues to move forward. As Wolfson noted, Obama has said that – legally and politically – the arguments against same-sex marriage fail. Until he finishes “evolving,” however, his statements (and those of his press secretary) will continue – as in New York – to lack the soaring rhetoric for which he is known, because they will continue to be bogged down by technicalities required by his current position.
As Jordan – the first black woman from the South ever elected to Congress – said in that 1976 speech that took place midway between the location of Obama's June 23 speech and the Stonewall Inn, “More is required of public officials than slogans and handshakes and press releases.
“More is required. We must hold ourselves strictly accountable. We must provide the people with a vision of the future.”