Ari Ezra Waldman | Barack Obama | Gay Marriage | Law - Gay, LGBT | New York

Same-Sex Marriage: Obama and the States' Rights Argument


 The maxim that the states know best when it comes to policy is not new. But, the idea that states are better at crafting policies for their particular citizens either because state representatives are somehow more representative of the people than national representatives or because of a belief in the federalism of our system has been tossed from right to left, from conservative to liberal, depending on the political winds of the day.

Gp_obama At various points during our history, so-called "states' rights" has been championed by "little d" democrats of the early Republic as against the Federalists' desire for a stronger central government; by southern slave state Democrats against northern Whigs and Republicans who wanted to keep the union together and abolish slavery throughout the nation; by "capital p" Progressives like Louis Brandeis, who called states the "laboratories of democracy" (although more recent scholars persuasively suggest that Justice Brandeis did not really mean to side with the states' rights movement); and by modern conservatives who want to shrink the size of the federal government and lower taxes.

So, at times it's the progressive or liberal thing to do to want the states to be free from dominion of the federal government and, at other times, it's the conservative thing to do. Likely because of the influence of the Civil Rights Movement, we now tend to assume that those siding with the states' rights movement are conservatives in some form of the word: business conservatives who want lower taxes, libertarians who want no federal government or even social conservatives who think the federal government is the Great Satan. Then again, those very same groups advocate against the states' rights mantra: business conservatives adore federal subsidies, but they hate federal taxes; libertarians even tolerate profligate defense spending while decrying a few dollars for PBS; and social conservatives would like nothing more than having a right-wing federal government monitoring who and what we do in our bedrooms.

That is a long, circuitous way of asking: What the frak is up with President Obama's stated "states' rights" position on same-sex marriage?


Let's begin with the case against President Obama coming out in favor of same-sex marriage. There is, of course, the possibility that the president, a deeply religious man, simply does not support allowing gays access to the institution of marriage. And, do not look for this president to hide away his personal beliefs when it comes to public policy: like Robert Kennedy more than 40 years ago, President Obama believes in a public discourse infused with civic responsibility, virtue and morality. Read James Kloppenberg's study (available here) or read the President's 2006 speech on religion for proof. We will return to this in a moment.

In any event, even if the President opposes same-sex marriage at the moment, we know him to be a reasoning man, sometimes to a fault. He displays none of the doctrinal rigidity of social conservatives or President George W. Bush for that matter, all of whom seem so sure of their beliefs that no change in circumstance could ever persuade them to change their minds. So, if we take him at his word, as I do, that his position on same-sex marriage is "evolving," why won't he "evolve already," as a number of activists want.

First, the real politik rationales. While a majority of Americans now favor same-sex marriage, marjorities do not support it in North Carolina, Virginia and Nevada, three important states for the President's re-election. African-Americans and Hispanics, two large voting blocs that must show up in droves for the President to win are still opposed to allowing gays to marry (though the extent of those majorities have decreased slightly from 2006 to 2008 to today). Same-sex marriage is one of those "diffuse" political issues -- it tends to attract a small, well-funded and vocal opposition, but the American majorities in support tend to be diffuse, disorganized and not ready to stake their vote on the subject. You and I might, but independents won't. This diffusion is true of sugar subsidies, too -- the sugar lobby really cares about it, but you and I don't. So, if the President makes same-sex marriage an issue in the next election, he risks riling up a base of opposition and giving his voters reasons to stay home.

All of that seems reasonable enough for a politician. But, we expect more of this president.

Rachel Maddow was wrong on Friday night when she blithely said, "It should be noted that the President opposes what's going on [in New York] tonight." That's not true. The President made it clear after the New York marriage vote and at the LGBT Pride reception at the White House that he supports what happened in New York. So, why won't he come out in favor of same-sex marriage? Does it make sense for President Obama -- as a private religious man and as the president -- to support what happened in New York and oppose same-sex marriage on the national level?

To understand the President, let's study his life, his politics and his beliefs. The President is the son of a biracial couple. They could not have gotten married without Loving v. Virginia and the national legislation efforts of the Civil Rights Movement. He was raised in the post-Civil Rights Era, which is to say, a generation after older African-American leaders like Congressman John Lewis. To the detriment of his political standing, he made national health care a priority of his first term, including an individual mandate that forces people to buy health insurance at the demand of the central government. He is also a legislative pragmatist, content with getting what he can when he cannot get what he wants. These facts seem to counter each other: at times, his backstory would make him a nationalist; at times, it would make him a federalist. Maybe that is what his "evolution" is all about.

It seems odd that a product of the Civil Rights Movement would take on the states' rights canard, and that is what makes President Obama's stated position so frustrating. He's telling us a tall tale to hide his political motives. He could also be content with finding progress at the state level when he knows there is no chance for progress at the national level. Gay rights legal advocates would agree with him there; lobbyists have all but given up hope for national legislation, knowing that the Republican-controlled House will not allow a DOMA repeal to come to a vote, and where the President has any power over federal litigation, he is mostly doing his part, declining to defend DOMA.

I think what makes some of us disappointed in President Obama is that we have come to expect liberals to separate their political selves from their private selves when it comes to public policy. That's a double edged sword (exactly how is beyond the scope of this blog post), but it has come to characterize liberal opposition to social conservative hopes to change our society into a theocracy. But, the President does not fit this traditional liberal mode: his narrative personal history, his religious beliefs and deep ties to his family and multicultural traditions are too important to him to shove to one side when considering the most important questions of the day. We can disagree with him on the merit of that approach to public policy, but we cannot call him a hater because of it.

In his speech on religion in 2006, President Obama showed himself to be a new kind of progressive, and one that made me proud to support him at the time. He started by looking at how he dealt with an attack from a religious conservative in his Illinois U.S. Senate race who said the then-state senator was not a good Christian because of his liberal values. "I answered with ... the typically liberal response," Obama said. "I said that we live in a pluralistic society, that I can't impose my own religious views on another, that I was running to be the U.S. Senator of Illinois and not the Minister of Illinois." In 2006, he said that response "did not adequately address the role [his] faith has in guiding [his] own values," beliefs and political decisions. It was wrong for Democrats to "abandon the field of religious discourse" in the political world to social conservatives. "The discomfort of some progressives with any hint of religion has often prevented us from effectively addressing issues in moral terms," he said. Without a moral discourse, liberals "forfeit the imagery and terminology through which millions of Americans understand both their personal morality and social justice."

The then-candidate Obama was reminding us that we cannot meet the middle of American politics by insisting on a form of secularism as strident as the doctrinairre religiosity of the right wing. "Secularists," he said, "are wrong when they ask believers to leave their religion at the door before entering into the public square. ... [T]he majority of great reformers in American history [] were not only motivated by faith, but repeated used religious language to argue for their cause." Why must progressive be any different?

We want the President to "evolve already" and he is treating us like infants when he offers his states' rights rationale. The argument is transparent, at best. But, I don't think it's very easy to describe what's behind the states' rights shield. It's too easy to call this politics and leave it at that; we have every political reason to believe the President's leadership on this issue could gain him votes and show his spine. It's also wrong to call this President a hater; he believes in equality. Beyond that, it's hard for us to know. He is not going to separate his private life from his public life and that what makes his progressivism in other areas -- health care, education, climate change and even free trade -- so compelling. But, it makes his "evolution" a real struggle and endlessly frustrating to traditional liberals.

What we can learn from the New York marriage vote is how to push the President along his evolution. Given what we know about him, what arguments will be most persuasive? What tactics will be most helpful to get our point across? In next week's column, I will take a closer look at the evolution of the NY State Senators who switched their vote from 2009 to 2011 and what factors moved them forward on the path. Perhaps we can gain some insight into the struggle that you and I don't have to go through, but our straight allies may need.

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

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  1. @Ari: Again, thank you for the article. Was Maddow really wrong? Obama has stated he believes marriage is between a man and a woman. So, he does, in fact oppose, the outcome of the NY vote. He might be all for the process that took place in NY, but that should not be taken as being supportive of the result (with regards to his public position on the issue).

    Posted by: searunner | Jun 30, 2011 1:05:49 PM

  2. A lot of analysis for an issue that is truly quite simple.

    Obama is fine with civil marriage. He just won't say because it diminishes his chance at reelection, particularly in swing states.

    That's it.

    Posted by: dms | Jun 30, 2011 1:09:13 PM

  3. Even if President Obama's religion genuinely leads him to believe that marriage is something special just for straight people, he knows that other religions think it's perfectly lovely to marry gay people. THIS is reason enough for him to conclude that marriage equality should be the law of the land. He is a constitutional scholar. smart, thoughtful. Public policy absolutely cannot favor one religion's beliefs over another religion's beliefs, and it doesn't matter the number of religions lined up on either side of the issue.

    He knows we're talking about civil marriage (note his recent use of the term), about the government issuing licenses to some people and not others. I do not believe that his religious view (or even the majority religious view) is the reason for him not fully supporting marriage equality. That leaves politics.

    Posted by: JeffCA | Jun 30, 2011 1:12:18 PM

  4. Ditto DMS. It's simple politics, and we the affected have fatigue from just waiting too long for this stuff.

    Posted by: Quint | Jun 30, 2011 1:22:05 PM

  5. He can't possibly think that this is the way to go (state by state). How is that equal and fair? If I had to relocate for my work, from Boston to perhaps a southern state, then my marriage would no longer be valid and we would loose many legal protections. Straight couples never give this a single thought. Why should I? Minimally, all states should recognize out of state marriages. It just makes sense!

    Posted by: Married in MA | Jun 30, 2011 1:25:56 PM

  6. This is, in many respects, a very thoughtful post. But I think it's dead wrong to suggest that Obama's religious beliefs play a substantial role in his view on this subject. That's not because I think Obama is a hardcore liberal secularist like me -- he does appear to believe that religion has a legitimate role to play in public policy -- but rather it's because I don't think Obama has any genuine religious objection to same-sex marriage. There are, of course, a great many liberal Christians who have no problem with gays, and Obama has already said that he doesn't think homosexuality is sinful.

    People who religiously oppose homosexuality while politically supporting gay rights talk about gay rights in a certain kind of way: they emphasize the importance of separation of church and state, of, as Sen. Grisanti said in the NY same-sex marriage debate, recognizing the difference between their role as a religious person and their role as a legislator. There is nothing whatsoever of this in Obama's speeches on the subject. Unlike those politicians, Obama's rhetoric accepts and embraces the gay rights movement's narrative of itself. He could be lying to us -- but I doubt it. Among other things, there are not very many well-educated liberal intellectuals who retain serious moral qualms about homosexuality.

    There's another reason to believe that his motives are politically expedient rather than the product of personal opposition. If you parse carefully what he's said about the issue over the past few months, I think Obama's double game becomes clear: he wants to say as clearly as he possibly can to us that he supports same-sex marriage without actually giving anyone else a soundbite to use against him politically. Something of this began during the campaign, when he opposed Prop. 8 without actually saying he supported same-sex marriage. But it's recently reached new heights. He keeps on positively referring to what went on in New York, while carefully couching his statements in a way that won't unambiguously suggest he supports same-sex marriage; he refuses to say any more that he opposes same-sex marriage, and instead he strongly implies that he will eventually come around to support it; perhaps most importantly, his Administration has embraced a legal position, heightened scrutiny for sexual orientation discrimination, that is pretty clearly incompatible with the retention of same-sex marriage bans. It would be one thing if he had solidly stood by his campaign position that marriage is between a man and a woman and fully-equal civil unions are good enough, but he hasn't.

    The political worries seem to me to be sincere, but I think they're largely unjustified: it's true that some Democratic voting blocks are not very big on same-sex marriage, but it also is very unlikely to affect their voting behavior. Conversely, some groups that Obama won big last time, like young people and socially-liberal independents, have drifted away from him since, and a strong stance on gay rights might help bring them back into the fold.

    Posted by: Fodolodo | Jun 30, 2011 1:34:45 PM

  7. What if civil rights were a states rights issue?

    Posted by: Jon Lee Hart | Jun 30, 2011 1:35:06 PM

  8. @searunner. thank you for your comment. president obama does not oppose what happened in new york. go read/listen to his remarks after the vote at the LGBT Pride reception at the White House and at the press conference. The President made clear he is completely in favor of NY passing gay marriage. That is very different from him personally believing x or saying it should be done nationally. Those other sentiments are what the column is about.

    Posted by: Ari | Jun 30, 2011 1:37:59 PM

  9. Agreed. Politics. I don't even think he really believes anymore that marriage is strictly between a man and a woman, but he's waiting until he gets re-elected so that doesn't become the focus of his campaign. So let's make it the focus of his campaign anyway and force him to be on the front/middle of this issue.

    Posted by: chris | Jun 30, 2011 1:39:22 PM

  10. @FODOLODO: You are completely right. I would say he comes out completely in favor of marriage equality around November 10, 2012 if he is re-elected. I'm not in love with him anymore and get downright frustrated at his take on how to do his job. But we really can't afford for him not to get elected in 2012.

    Posted by: Jonathan | Jun 30, 2011 1:44:02 PM

  11. Ari, your post ignores that Obama told the Windy City Times in Chicago that he supported same-sex marriage when he ran for Senate in Illinois. Presumably he was just as religious at that time. He then changed his position to take a more restrictive view of gay rights when he ran for national office, suddenly opposing our having rights he takes for granted, talking about "god being in the mix", having homophobes like Donnie McClurkin perform on the campaign trail and having the homophobe Rich Warren do the invocation at his inaugural, while relegating Bishop Robinson to a minor off camera role. His administration filed vicious defenses of DOMA, including comparing gay relationships to incestuous and bestial ones. In the Prop 8 battle, the President's opposition to same-sex marriage was trumpeted by its supporters--especially in the African American community-- and I believe helped cause the loss of marriage rights there. He has not lifted a finger to advance marriage rights in any state. The switch on defending DOMA--very welcome of course--only came as it became clear that the base of the Democratic Party, including prominent gay donors, was feeling isolated and ignored and might not roll out the necessary ATM for 2012.
    Now the President can say he is "evolving," which lets him seem more progressive than his acts justify while reassuring the troglodytes that he is not moving the ball of equality too fast.
    You see deep reasoning and religiosity. I see cynicism, cowardice and an abandonment of principle.

    Posted by: David Goroff | Jun 30, 2011 2:01:54 PM

  12. Ari...good post. But what does Loving v Virginia have to do with Obama's parents? Stanley Ann Dunham and Barack Obama Sr were married in 1961. Loving v Virginia was not handed down until 1967.

    Posted by: A R Henderson | Jun 30, 2011 2:07:29 PM

  13. Agree with Fodolodo, this President comes off as very moral, but not very religious (and in fact rarely goes to church). In fact, he is much more mindful of how religious people feel about him rather than how his religion affects his public policy.

    We are always getting the "wink wink" from Obama on this issue. He knows we get it; and he's hoping we'll give him a pass.

    The problem is, and you can see this much more evidently since the NY marriage win, is that now the press has caught onto the "wink wink" as well. The New York Times and the Washington Post have been editorializing about this daily, and have now started asking him about it daily. He is really going to spend another year and half dodging the major news outlets on this issue?

    Yesterday once again felt like Obama and his White House putting their toe in the water. Their original plans most assuredly were to wait until after reelection to come out and openly support marriage equality. But perhaps now he's seeing another window of opportunity, and might just indeed evolve before the general election heats up.

    If he's worried about white christians voting against him over this, don't bother cause he doesn't have their vote to begin with. Yes it will cause some screams with some African American and Latino voters, but they're not going to sit out the election over it. He desperately needs to re-energize younger liberal voters, and this would go a long way to remind him that he's the "real deal."

    He needs to take the "yes-voting" NY Republican line on this: civil marriage for gays and lesbians, strong religious protections for churches and organizations.

    Posted by: Jollysocks | Jun 30, 2011 2:07:56 PM

  14. "It's also wrong to call this President a hater; he believes in equality."

    @Ari: How do you know this? I agree that "hater" is too strong a word, but I don't see how the second unequivocal, broad statement can be made without further proof. While I appreciate your column, it's those kinds of statements that suggest a different, though equivalent, tautological canard (i.e., that he believes in equality because he believes in equality).

    Posted by: Mister | Jun 30, 2011 2:10:22 PM

  15. States rights? Hmm... Mr. Obama either has a shockingly deficient history education or else just think that his supporters are really gullible. After making his position clear now, I won't be voting for him next time around. I'm voting socialist. The socialists believe in FULL equality for ALL citizens. Yes, I know, it is highly unlikely that my chosen candidate will win the presidency. However, I am an old woman now, and it is time to vote for what is right and good and honest. I thank Mr. Obama for waking me up after a lifetime of believing such political rhetoric from so-called liberals. I may be a left-wing old granny that young people find easy to dismiss as a relic, but I think I've learned a thing or two after watching decades of politics and hoping for equality some day. Vote with your hearts, young people. You know what is right deep inside and how you want the world to be. That's your answer.

    Posted by: Janice | Jun 30, 2011 2:17:28 PM

  16. I would agree that Obama is only "religious" because it is expedient and a requirement of high office these days. I see the wink just as I did with the Clintons every time they were photographed leaving a church. They were and are not the least bit religious. Remember, the leader of Obama's church in Chicago is a vocal supporter of marriage equality. Obama's position is a false one and the evidence from his stance in 1996 clearly supports this.

    However, while I have been where Janice is today. I think he will be more openly on our side if he is re-elected. We can't afford the Republican bigot who will succeed him if he isn't re-elected right now. It's all when and good to vote with your heart but the practical realities are important as well. We have shown we won't allow the President to ignore us and still open our wallets. My prediction is the 4-years post 2012 will see a very different Obama as to equal rights.

    Posted by: Jonathan | Jun 30, 2011 2:29:30 PM

  17. @Married in MA -- What about the "fairness" of abortion laws, death penalty laws, sodomy laws pre-Lawrence v. Texas, miscegenation laws pre-Loving v. Virginia? Our federal system tolerates variations between state constitutional and statutory rights in lots of contexts. States are perfectly free to grant more rights to individuals than the federal constitution requires -- it's a floor, not a ceiling. At this point the "floor" does not require marriage rights for same-sex couples.

    Posted by: Brian in the Slope | Jun 30, 2011 2:49:36 PM

  18. Very simple:

    There are some lines even a 'progressive' president fears crossing, and that's gay civil rights:

    1) MOST people aren't gay and this is not an agenda on their radar screen. In fact many non-gays find it a terrible distraction from more 'serious' issues. POTUS and his handlers know this.

    2) Early in his political career Obama had to basically s*ck up to African Americans in IL, specifically Chicago. Black [mostly southern conservative] churches play a powerful influence in the 'community' and they mostly strongly oppose gay marriage or gay civil rights in general. Obama knew he couldn't step on any toes [even if he was goaded by white secular 'progressive' ].

    3) As president, Obama still must be mindful of religious conservatives [obviously especially powerful in the south and parts of the midwest]. Again, he doesn't want to unnecessarily step on toes, so he basically sacrifices gays and their agenda when convenient. It's really a win-win for him: most people really aren't obsessed with gay issues [not surprisingly] so any real backlash except from a few gays, and he knows gays really have no alternative to him or the Democrats.

    Posted by: ratbastard | Jun 30, 2011 2:52:19 PM

  19. I would just like to point out that you do have many "straight allies" who already read this blog and who haven't "struggled" with the issue.

    The people who struggle seem to me to be influenced partially by sexual orientation, but largely by religious background and age/generation. They grew up assuming one thing - that homosexual relationships were shameful and unnatural and should therefore not be celebrated - and are now grappling with the realization that it's not true.

    Posted by: Mad | Jun 30, 2011 2:53:43 PM

  20. @MAD,

    Don't go overboard withe generation thing. Nothing new here. 'Youth' have always traditionally been more 'open minded' than their 'elders'. What happens is by the time they hit their late 20s or so, they 'mature' and change.

    Plus, there's PLENTY of genuine anti-gay hate and 'homphobia' among 'youth', especially certain 'youth' demographics.

    Posted by: ratbastard | Jun 30, 2011 2:57:20 PM

  21. Ratbastard why do you put quotes around words like minority and community when used to describe minorities, here & on other pages? To be a racist provocateur?

    Posted by: redball | Jun 30, 2011 2:57:45 PM

  22. "It seems odd that a product of the Civil Rights Movement would take on the states' rights canard."

    Not really.

    Loving is "so five minutes ago" to Obama.

    Rachel was right.

    Posted by: David Ehrenstein | Jun 30, 2011 3:00:08 PM

  23. "In the Prop 8 battle, the President's opposition to same-sex marriage was trumpeted by its supporters--especially in the African American community-- and I believe helped cause the loss of marriage rights there."

    Yes, about 60% of 6% of California's population gets blamed for the passing of Proposition 8.

    As Ari pointed out a clear majority of New Yorkers supported marriage equality, but the Democrats have New York in 2012. The President needs North Carolina, Ohio & Florida. I don't know what the actual polls say but I doubt if a majority in those states support marriage equality for Gays. What's good for New York at this time may not be appreciated in Ohio or Florida.

    Yes, of course it's about politics. It's always about politics when politicians are running for election. Did John Kennedy come out in support of interracial marriage in 1060 or Lyndon Johnson in '64? Hell no. They stayed as far away from that controversial issue as possible because they had elections to win. But yet we found out later that both men would be champions of civil rights.

    "What if civil rights were a states rights issue?"

    Civil rights were controlled by the states for about 100 years after the Civil War. It's been 42 years since'll get marriage equality.

    "Yes it will cause some screams with some African American and Latino voters"

    Oh, really? Is that why Blacks and Latinos continue to vote for Black congressmen, mayors, city council people who support marriage equality? Not to mention all the other pro marriage equality Democrats we continue to vote for (in those states, localities were you have such politicians).

    "I see cynicism, cowardice and an abandonment of principle."

    Ok, and just add a little pinch of political smarts in that mix and what do you get? Re-election to the White House.

    Posted by: Derrick from Philly | Jun 30, 2011 3:00:14 PM

  24. @redball,

    I do it because I question the legitimacy of way many use the word minority. I'm white, born Christian, and am still a 'minority' in several ways [not even including sexual orientation], yet wouldn't be called a minority. 'Hispanics' are considered a 'minority' when in fact 'Hispanic' is not a race, and there are MANY white Hispanics of European descent, who are straight and Christian.

    As for community, I personally find it an amusing term since there are many people, black, white ,Hispanic, Asian, gay, bi, straight, male, female, who don't fit into the 'community' ideal.

    Posted by: ratbastard | Jun 30, 2011 3:03:41 PM

  25. Obama believes this is a civil rights issue, and therefore federal. But he is a realist. Until more states follow New York's example and public opinion shifts more dramatically in marriage's favor, nothing can happen federally -- and for him to prematurely make that case jeopardizes his re-election, which we very much need. He has chosen the best possible strategy for the moment: work to repeal DOMA, which will make civil marriage federally inevitable.

    All of us, not just the President, have to be practical in our idealism.

    Posted by: Jack | Jun 30, 2011 3:04:23 PM

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