Obama, the Gay-Marriage Flip-Flopper
by JOHN CLOUD
Time, August 19, 2009
On a sunny Saturday last month, I crashed a fancy brunch on New York's Fire Island at the
swank beachside home of Daniel Cochran and Greg Sutphin, a wealthy gay couple. They served
lovely Bloody Marys and a giant spread of eggs and meats and assorted asparagus dishes
prepared by a white-coated chef. The brunch was the 31st to be held in Fire Island's Pines
community to raise money for Lambda Legal, the gay movement's litigation arm. At last
year's brunch, cheers went up virtually every time Barack Obama's name was uttered. This
time, when Lambda executive director Kevin Cathcart began to review the President's record
on gay issues, he was greeted with steely silence.
That silence because it came from some of the most generous gay political donors in
the country is key to understanding the confusing position the Obama Administration
took this week on whether gays and lesbians should enjoy equal marriage rights. (See a
visual history of the gay-rights movement.)
Try to thread this needle: The President has stated his opposition to marriage equality
many times. In fact, during his campaign, he pandered to African-American audiences
a group that was already for him by inviting a black singer named Donnie McClurkin
to perform at his events; McClurkin believes one's sexuality can be changed by praying to
Jesus Christ. And yet Obama has also said he opposes Public Law No. 104-199, 110 Statute
2419, a 1996 bill (signed by President Clinton) that anti-gay forces called the Defense of
Marriage Act, or DOMA. Obama has said several times that he would like that law
overturned.
And yet sorry, the contradictions keep coming once Obama was elected, and
once a gay couple in California had sued to overturn DOMA, his Administration not only
defended the law, but defended it in a legal argument so reactionary that it would
embarrass Dick Cheney (who, incidentally, is to the left of Obama on marriage). In that
argument here's a PDF courtesy of Georgetown professor Nan Hunter Obama's
lawyers noted that "courts have widely held that certain marriages performed
elsewhere need not be given effect, because they conflicted with ... public policy."
The examples the Justice Department offered: "marriage of uncle to niece,"
"marriage of 16-year-old," "marriage of first cousins." (Watch a
gay-marriage wedding video.)
That argument that two consenting adult men marrying isn't unlike a man marrying
his niece led to the silence at that Fire Island brunch. And as I have pointed out
before, Obama loves to raise political donations; he has plainly begun to worry about his
standing among the rich homosexuals who used to fawn over him. As the New York Times' Adam
Nagourney first reported, the California legal brief was one reason that a prominent gay
supporter of Obama's went to the Oval Office in late June to express, for 15 full minutes,
the gay community's deep disappointment.
And so this week we get a new legal brief from the Obama Administration in the California
case, this one denuded of the execrable incest defense. This time (here's another PDF from
Hunter), Obama flip-flops again now back to his campaign position. (It must be
dizzying to work in the White House these days.) Now the Administration says it opposes
DOMA and wants it overturned but that tradition dictates that it defend the law.
And that is why, the White House said in a statement, "the Department of Justice has
filed a response to a legal challenge to [DOMA], as it traditionally does when acts of
Congress are challenged." (See a gay-rights timeline.)
Legalistically speaking, the tradition argument is true, but it's yet another Obama dodge.
The Administration could easily decline to defend the anti-gay law on discrimination
grounds, just as the Administration of George H.W. Bush declined to defend federal laws
setting a preference for awarding broadcast licenses to minority-owned businesses in 1990.
The radical firebrand at the Department of Justice who successfully argued against
defending those laws? A young DOJ attorney named John Roberts, who is now the Chief
Justice of the United States. Clearly, Obama could have refused to defend DOMA if he had
really wanted to. Georgetown's Hunter cites other cases in which the Justice Department
has declined to defend laws, including one involving a minor cable-TV dispute. As Eugene
Volokh of UCLA told me Aug. 18, there is nothing in the constitution or the law that would
have prevented the Department of Justice from sitting on the sidelines in the DOMA case.
Nothing except politics. Obama's triangulation between left and right has become
excruciatingly obvious on this issue, and he's not quite as deft a politician as Bill
Clinton at keeping his left flank at bay. I wouldn't be surprised if, next summer at the
32nd Fire Island Pines fundraiser for Lambda, I hear booing when the President's name is
mentioned.