Even if candidate can’t say what he really thinks about the issue, his position represents progress for the LGBT community since 2004

In a recent statement, Barack Obama said he rejects “the divisive and discriminatory efforts to amend the California Constitution” and similar efforts in other states.

At the same time, Obama has repeatedly said that he opposes gay marriage. While his views are perplexing as a matter of logic, they remind us that Obama is a politician and say a lot about the state of the Democratic Party on gay rights.

Obama opposes the proposed amendment because, he says, it is “discriminatory.” But how is it any more discriminatory than his own position? He believes that marriage is between a man and woman; the proposed amendment says that marriage is “between a man and a woman.”

Is there any way to reconcile his opposition to gay marriage with his opposition to the California amendment? I can think of three possibilities.

First, one could oppose writing the traditional definition of marriage into the state constitution as opposed to state statutes. This would leave the state legislature and governor with the power to make the call at a later time.

The problem with that is that the California Supreme Court effectively wrote the new definition into the state constitution, removing this very power from the state legislature and the governor. If you oppose gay marriage on policy grounds, there is now no way to implement your view except to constitutionalize it by amendment. The Supreme Court has left you no choice. And in California, because it’s so easy to amend the state constitution, you’re free to support a repeal at a later date if you change your mind on this issue. You don’t have to worry that you are erecting a supermajority barrier.

Next, since gay marriages are a fait accompli for the next few months, even if you oppose them you might not want to undo the interim marriages (which is a possible effect of passing the amendment) or, more abstractly, “take away rights.”

This would be an incredibly generous reason for a real opponent of gay marriage to oppose the California amendment since the number of interim marriages will be small in absolute terms, the marriages exist only by mandate of four judges, they are entered with notice that they may be nullified in a short time, and the cost of losing the referendum will be many more such marriages into the indefinite future. But if Obama is such an anti-SSM altruist, he does not give this as a reason for opposing the amendment.

Finally, a gay-marriage opponent who supports civil unions (like Obama) could vote against the California amendment on the ground that it might also be interpreted to eliminate the state’s domestic-partnership system. This risk might be intolerable if you weakly oppose gay marriage but strongly support domestic partnerships. I think it is unlikely that the amendment will be interpreted so broadly by the California courts if it passes, but the risk is above zero. However, once again, Obama does not offer this as a reason to oppose the amendment.

So what’s really going on? There are two things happening. First, I don’t think Obama really opposes gay marriage deep down and I suspect he does see the exclusion of gay couples as a kind of discrimination. He has never been able to explain his reasons for opposing gay marriage — which is very revealing for a man who’s otherwise unusually thoughtful for a politician. He just says, basically, I oppose gay marriage “because I say so.” So calling the amendment discriminatory and divisive may be candor squeaking through.

Second, and probably more importantly, this is an instance where politics necessitates cognitive dissonance. Gays and those who support gay equality are a critical constituency in the Democratic Party. Obama can’t keep the gay-friendly base happy and support the amendment, which is rightly seen by them as involving huge stakes for the gay-marriage movement. But at the same time he figures that he can’t support gay marriage because that might mean losing the election.

Don’t get me wrong, I’m grateful for Obama’s opposition to the amendment. It might actually help sway some of his socially conservative black and Latino supporters, who will vote in large numbers in California in November. But then, I support gay marriage. If I opposed it, I’d probably be either mystified or angered.

Obama’s explanation for why he opposes gay marriage and opposes the proposed California amendment banning it can’t be squared as a matter of logic. It’s a matter of politics, which reminds us that for all the hype about hope, Obama is still a calculating politician.

It also says something about how much things have changed in a short time. We’ve gone from the Democratic presidential nominee in 2004 opposing gay marriage and supporting state constitutional amendments to ban it, as John Kerry did; to a Democratic nominee in 2008 who says he opposes gay marriage, but who’s uncharacteristically at a loss to explain himself, and who opposes the only way to prevent it from becoming a permanent reality in a state of 40 million people; to, I predict, a nominee in 2012 or 2016 who will say he or she personally “favors” gay marriage but adds that the president has no role in the decision because this is an issue that should be left to the states.

Dale Carpenter is a law professor. He can be reached at OutRight@aol.com. Some of his past columns can be read at www.indegayforum.com.





This article appeared in the Dallas Voice print edition July 18, 2008.