Fallout from Obama’s DOMA Decision :: Court Cases and 2012

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by Kilian Melloy

Anti-Gay Groups See Opportunity

Anti-gay groups targeting equality measures for same-sex families saw an opening to advance their cause, noted the San Francisco Chronicle. The House of Representatives might now "get lawyers in the courtroom who actually want to defend the law," said Maggie Gallagher, the chairwomen for the National Organization for Marriage (NOM). The group spent millions in California in 2008 to rescind marriage rights for gays and lesbians, and has spent millions since then in states around the nation where marriage equality is, or might become, legal, in hopes of barring gay and lesbian families from marital parity.

But the immediate effects already indicate that the Obama Administration's de facto expression of support for GLBTs and their families will lend support to efforts to secure full civil parity for gays. The same day as Holder's announcement, advocates for restoring marriage parity in California filed a petition to allow California families to commence marrying once again, even as the appeal on the federal court's verdict regarding Proposition 8 remains ongoing.

Lawyer Theodore Olson, one of the attorneys who challenged Proposition 8 in federal court, pointed to the administration's call for "heightened scrutiny" in cases affecting GLBTs, declaring that the voter-approved measure "cannot survive" such scrutiny. Olson pled for the rights of same-sex families, saying that each day they were denied ""the right to marry [and] the full blessings of citizenship is a day that never can be returned to them."

The current phase of the appeal in the Proposition 8 case is expected to last into next year, when the issue is likely to play a role in the next presidential election. Republicans are sure to capitalize on the decision, but Obama's middle-of-the-road course on GLBT issues had not garnered him much support from the GOP or from anti-gay conservatives, and had angered gay voters who supported him in 2008.

A Feb. 24 New York Times article summarized the dilemma that the Obama Administration resolved by making its decision. "Would the president instruct the nation's lawyers to stop defending the law, which Mr. Obama has long called unfair, and risk a renewed battle over a simmering social issue?" wrote Michael D. Shear. "Or would he continue to defend the law at the cost of once again disappointing his base?

"The president chose to drop any pretense that his administration supports the marriage act," Shear continued. "As the cases move forward, the Justice Department will no longer argue it is constitutional."

The article noted that John Boehner's spokesperson, Michael Steel, had criticized Obama for the decision during a time of ongoing economic crisis.

"While Americans want Washington to focus on creating jobs and cutting spending the president will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation," said Steel.

The same criticism has been leveled at Republican lawmakers in a number of states, especially in New Hampshire, where a majority of voters would rather see state legislators tackle economic issues and leave the state's law permitting marriage equality intact. Despite polls showing overwhelming support for marriage equality, Granite State Republican lawmakers continue to assail the law.

GLBT equality advocates say that there may be some rhetoric, but they expect to see little real backlash. The argument used by the Human Rights Campaign's Fred Sainz echoed the line of argument used to criticize the president, though with a slightly different spin: "Americans overwhelmingly are through fighting culture wars that don't result in jobs, economic prosperity or move the country forward," Sainz told the New York Times. "People that don't focus on pocketbook issues are frittering away their 15 minutes of attention."

The article deemed such predictions "wishful thinking," and noted that a poll conducted by the Associated Press last summer found that a bare majority--only 52%--of the electorate favor granting gays and their families full civil equality. The article noted that, "[T]there is no reason why a Republican candidate in 2012 couldn't use it as a wedge issue against Mr. Obama."

Already, anti-gay conservatives who may wish to make gays and their families a campaign focus once again are making claims to "morality". Pat Buchanan declared it a "moral" matter and said that Obama had "capitulated" to gays, a word frequently used by anti-gay conservatives to characterize the victories of equality-minded politicians.

In the meantime, however, some speculate that Obama's position on gay marriage is "evolving" just in time to win him renewed support from the GLBT community. Anti-gay politicians have, over the course of the last two years, defended their views by saying that their stance on marriage equality is "the same as that of the president," but in an interview last year the president told gay blogger Joe Sudbay of America Blog that his position on marriage equality is something that he still ponders.

"I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage," Obama told Sudbay. "But I also think you're right that attitudes evolve, including mine," Obama added. "And I think that it is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents."

The president went on to say that he was "not prepared to reverse myself here, sitting in the Roosevelt Room at 3:30 in the afternoon," but that the issue remains "something that I think a lot about."

Obama's words sent an instant frisson through the GLBT world, and the mainstream media took note. An Oct. 28 New York Magazine article by Dan Amira openly dismissed as "disingenuous" the distinction Obama makes when he says he upholds civil unions but not marriage equality.

Titled, "President Obama Getting Closer to Ending His Pretend Opposition to Gay Marriage," the article noted that Obama had opposed Proposition 8, the 2008 ballot initiative that rescinded marriage rights for gay and lesbian families in California. The article also tallied the president's record of support for GLBT equality, and recalled that in 1996 Obama answered a questionnaire that asked about marriage equality by saying that he would be in favor of it.

"When you add it all up, the only conclusion that really makes sense is that, in his heart, Obama is fine with gay marriage, but didn't think the nation was ready for a president who felt that way," Amira wrote. The article then went on to say, "Approval of gay marriage surged, it was legalized in a number of states, and Obama's support for civil unions, which would have been considered relatively enlightened five or ten years ago, began to seem downright antiquated to many people."

Amira speculated that the comment might herald an open declaration of support for marriage equality in 2012. Given the social shift, a pro-marriage stance from Obama would "be inherently mainstream."

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.


  • RJ, 2011-02-25 11:19:51

    Bill Clinton’s DOMA was/is terrible law and it should be repealed. But REPEALED. Do any of us really want a President deciding on his/her own what acts of Congress, what alws, they will and will not defend? Will the Obamaphiles be ok with a GOP President deciding not to defend challenges to ObamaCare? Or other laws popular with the Left? The proper- and Constitutional- avenue is to repeal the law. (And while we’re at it, separate marriage and state, incl. all of the tax and entitlement bennies that come with that meddling, once and for all. No need for government to legislate marriage period.)

  • , 2011-02-27 13:15:55

    RJ’s EXACTLY right on all points. DOMA needs to be repealed. However, what Barry is doing is just a stunt. He’s grasping at straws, nervous about losing in 2012; trying to get "The Gays" reenergized to rally behind him. We gays that were paying attention were not fooled by him in 2008. Hopefully the rest of you will not be fooled again in 2012.

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