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Adam Winkler

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A Day to "Make News"

Posted: 07/03/11 06:24 PM ET

When President Obama was asked at a press conference this past week whether he wanted to clarify his confused stance on gay marriage -- refuse to defend the Defense of Marriage Act one day, refuse to endorse marriage equality the next -- he answered that he "was not going to make news on that today." Many people suspect that Obama really does favor gay marriage (he said as much years before running for president), but that his cold political calculation is that a public statement in support of the freedom to marry could hurt him in the 2012 election. Last week, one might have been forgiven for thinking that Obama's record of political achievements, from healthcare reform to Don't Ask, Don't Tell repeal, warranted giving him the benefit of the doubt.

July 4, however, casts Obama's position in a new light. Independence Day is a day commemorating the boldness of our founders, whose Revolution was anything but a foreordained victory. Despite the substantial risks to them personally -- up to forty percent of colonists were opposed to independence and King George would surely have beheaded each and every one of the Declaration of Independence's signors for their treason -- they chose July 4, 1776 to stand up for their deepest held values.

July 4, in other words, is a day for making news.

Some people are beginning to question whether Obama's political calculation is correct on its own terms. With polls now showing gay marriage to have majority support and one key faction of the Republican coalition -- the Wall Street crowd -- now favoring equal rights, Obama may be forsaking a potent wedge issue he could use to split the opposition. Perhaps these critics are right, although Obama is probably focused on how coming out in favor of gay marriage would impact voters in swing states like Ohio, Florida, and Pennsylvania.

Yet from the perspective of July 4, this kind of political balancing looks petty. The issues at stake in the gay marriage debate are too important, too central to our identity as Americans, to leave to an electoral abacus.

The Declaration of Independence famously announced that all people are "endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness." Gay people in America, however, cannot fully enjoy these rights. They don't have the "liberty" that heterosexuals have to enter into state-sanctioned unions and start families with the people they love. The overwhelming majority of heterosexuals recognize that marriage is central to their self-fulfillment and contentment, as evidenced by the joys associated with wedding days and the continued embrace of marriage even among those whose previous efforts ended in divorce. Simply put, the freedom to marry is a cornerstone of the pursuit of happiness.

The founders did not recognize the importance of gay marriage -- or even the nature of homosexuality itself -- but that shouldn't prevent us from insisting upon marriage equality. The story of the unalienable rights identified by the founders is one of continual expansion to include more and more people deserving of those liberties. When Thomas Jefferson, a slave owner, wrote the Declaration, its promise was denied to the vast majority of people on our shores: women, slaves, free blacks, and Native Americans. Over the past two centuries, however, we've found that American ideals are only made stronger by including an ever larger portion of We the People.

Today we stand at a crossroads. Will we allow gays and lesbians to finally become full partners in the American experiment, or will we continue to repress and discriminate against them?

That is the question Americans, especially President Obama, must ask. Like the founders, we should not determine the answer by looking at polling results or pondering how it will affect the next election. We should ask instead what our answer means for our core principles. We should ask how we can live up to the spirit of '76.

On July 4, merely to ask the question is to know the answer. Mr. President, your countrymen are waiting.

 

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10:20 PM on 07/17/2011
"continual expansion!" Gays understand that better than anyone else!
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HUFFPOST SUPER USER
Scott Zwartz
11:47 AM on 07/06/2011
There is no Constitutional right to Equality. The right to protect is Liberty. The constitution was expressly established to secure the Blessings of Liberty. The 14th Amendment says that individuals my not be deprived of their individual liberties by assigning them to some group and then denying individual liberties to everyone in the Group. That is what DADT and DOMA are unconstitutional. It has absolutely nothing whatsoever to do with EQUALITY.

Justice Kennedy make this legal fact absolutely clear in the first paragraph of Lawrence v the State of Texas (2003). Nonetheless almost all "Gay" leader push a Group Rights Agenda and most Gays are too uneducated to know by screaming Equality, they are saying, "Deprive me of my individual unalienable and constitutional rights and treat me as a member of a Group."

Whenever a large number of individual are placed into a Group and then denied their individual liberties based on that "group identification," those people should rise up and proclaim that the group classification is un-American and a deprivation of their individual rights under the declaration of Independence and the US Constitution.

The claim to Equality is extremely harmful to Gays. It says that our individuality as separate persons with our own individual merit is irrelevant and instead our rights as based upon our being assigned to some arbitrary Group.
HUFFPOST SUPER USER
carter2004
01:07 PM on 07/06/2011
Amendments, amendments, amendments. It's all in the amendments. The Fourteenth explicitly guaranties equal protection of the law, and the substantive due process protections of the bill of rights guaranty these kinds of rights. Not a controversial point in American Constitutional law at all. I'd humbly suggest you don't know what you're talking about.
10:58 PM on 07/07/2011
I'm pretty sure that the Court itself views the 14th amendment to contain an "Equal Protection Clause", which says that people similarly situated should generally not be treated differently under the law.

"Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" (14th Amendment text)

The word "equal" is clearly in there and thus we can say without a doubt that equality is a Constitutional Right. QED.
12:06 PM on 07/05/2011
What public interest is served by marriage laws? Does anyone need some kind of official government certificate to have a romantic relationship? To share rent or living space? To inherit property? Of course not.

The only substantial, rational reason for the institution of marriage is to establish and maintain stable nuclear familes for reproduction and child-rearing. Take away that purpose and marriage is an unintelligible artifact.

Family structure has been weakened over the past fifty years to the point where more than half of children are now born out of wedlock, with enormous social costs. The responsibility and cost of raising children is largely shifting from biological parents to the state, and I defy any gay rights advocate to make the case that this is a good thing for individuals or society at large.

"Same-sex marriage" will finish the job of making marriage devoid of purpose of meaning. Some proponents fully understand this, of course, and actively work towards this result, because their long-term goal is to do away with biological familes. The remainder are well-meaning but naive people who don't understand any good or value beyond a mindless pursuit of "fairness."
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HUFFPOST SUPER USER
too young but old enough
I already know how this is going to turn out...
02:40 PM on 07/05/2011
Um...Don't know where you found that marriage is all about reproduction and child-rearing, but there are about 1400 legal and economic benefits related to marriage. Not anywhere near all of them have to do with child-rearing or maintaining nuclear families.

http://www.religioustolerance.org/mar_bene.htm

While it's well and good to believe that marriage is all about having and raising kids, you need to remember that all that is, is your belief. Marriage is many things to many people...You don't get to define it just because you consider yourself to be morally (or however) superior to those you'd deny the same rights to.

Until the government stops giving special treatment to people who are married, EVERYONE has the right to be married. You have the right to be offended, but not to keep rights away from a class of citizen because you object to their existence.
04:07 PM on 07/05/2011
You're confusing a public or governmental interest with a private benefit. I'm well aware that marriage provides private benefits; who isn't? The question was, why should the government give anyone those special benefits? What public interest does it serve? Here's another way to ask the question: If you want the government to guarantee that that every person is treated equally, why not just get rid of legal marriage altogether and avoid the unfairness of giving married people benefits that unmarried people don't get?

Hopefully you can come up with some reason besides "increasing homosexuals' self-respect."
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Robert McGehee
Your delusions are yours, mine are mine.
08:22 AM on 07/05/2011
I understand that CountryClubRepublican believes marriage is primarily about procreation, but CCR is failing to take into account all the other things -- legalities is you will -- that marriage is also about. As a for instance, and certainly not intended to be all inclusive, there are property rights, inheritance rights, rights to visit your loved one in the hospital and to be included in consultations about her/his health care. I have read of more than one case where two men lived together for many years, owned a small, but successful ranch in Wyoming or Montana, had acquired property together, etc. etc. One of the men died from an unfortunate, and certainly unexpected accident. The day after his funeral, the immediate kin of the deceased moved to have his partner removed from the ranch, and the county sherrif did so. A court did rule that the partner had no rights to the property whatsoever and that the immediate next-of-kin, a neice and a nephew, were the rightful heirs. Perhaps a will, or a legal partnership agreement would have made things different, but those sorts of legalities can and have been successfully challenged and overturned in courts.

But, most of all, this whole issue is about equality before the law. I'm for it, CCR isn't.
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HUFFPOST SUPER USER
BankOfHell
I know little of women. But I've heard dread tales
08:14 AM on 07/05/2011
"...The founders did not recognize the importance of gay marriage -- or even the nature of homosexuality itself..." I disagree; they put nothing in the Constitution to ban gays or gay marriage. They just left it up to the evolving mores of future generations.
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Robert McGehee
Your delusions are yours, mine are mine.
08:29 AM on 07/05/2011
Well, there is the technicality of whether or not "gay" even existed or was thought of in those days. Certainly it did no in the way that we understand the term today. Now, men have been sleeping with men, and women with women, for as long as they have been sleeping with each other, and that probably has not been news to anyone for quite some time. But, in most societies, those actions have existed right alongside the more traditional marriage and family. In some social/cultural groups, men who preferred a relationship with another man, or woman/woman bonding, were accomodated openly, and in some cases even held honored places within the community. That is not news, either. The world is a wonderful, varied place. But other times did view things in totally different ways that we do.
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HUFFPOST SUPER USER
BankOfHell
I know little of women. But I've heard dread tales
11:44 AM on 07/05/2011
The more varied the better in my opinion.
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HUFFPOST SUPER USER
Scott Zwartz
11:54 AM on 07/06/2011
And in America, we have the individual liberties to chose with whom we will sleep and whom we will or will not marry. It is all based on individual rights which the State may not limit by assigning us to some group.

When the government says individuals who are labeled gay may not serve in the military or may not decide whom they wish to marry, our individual liberties are violated. Stop imposing Group Liabilities upon us and will the so-called Gay Leadership stop trying to obtain Group Rights.

I am an individual American and I want my individual liberties and I do not want any type of special right by being assigned to the group GAY and more than I wish my individual liberties to be abridge by my being assigned to any group, e.g. GAY.

Group rights and Group liabilities are un-American and as a Gay person, I oppose both special liabilities and special rights based on the notion of Equality. The American value is Liberty!
02:56 AM on 07/05/2011
Prof. Winkler, you are looking in completely the wrong place for the "big news" of the July 4 weekend. I would like to recommend the brief filed by the DoJ on Friday on the Golisky DOMA case. Casually titled "opposition to motion to dismiss" it is a thunderous proactive argument for heightened scrutiny as well as the complete unconstitutionality of DOMA. This is also a direct frontal attack on the BLAG attempt to defend DOMA. While I have gone also gone through my own period of "disillusionment" I am now starting to see Obama's careful process as being truly powerful. He has (almost) removed DADT and is now taking apart DOMA. Would making statements about overall marriage rights at this time help this or distract from the DOMA arguments (which at this time are about equal rights for already married same sex couples)? Would Obama statements in NY previously have helped four NY State senators break ranks to do the right thing or not? Why do we all want unnecessary public statements when the real work is dismantling inequality? The last president to make bold public statements on what he would do ended up being completely outmaneuvered in the political response and ended up signing both DADT and DOMA into law. I prefer results, and I see these happening. I think the weekend DoJ brief is big news.
03:56 PM on 07/04/2011
DearRed 66,,,So you think the two People involved in a marriage should at least be of a certain age ?
I agree. You also think they should Not be to closely related ? I also agree with That. So ah...why is it that you apparently don't think , one of them should at least be a Man and one a Woman ? If Two guys or Two women want to inter into a Legal agreement that they will love, Cherish,,ect, each other for the rest of their lives ...There Never was a Law that said they Couldn't. They can even be related if they want ! Ha. To be Legal they do have to be of a certain age.
03:44 PM on 07/04/2011
gosh couldnt you have just given it a rest for the 4th weekend...about 80% of america could care less about gay marrage and esp on this weekend..but no pushing forward blah blah blah ...really
HUFFPOST SUPER USER
johnpw41042
$3 dollar bill here
03:51 PM on 07/04/2011
If it was a issue that was important to you things would be different for you. Believe it or not, Independence day could not be even more appropriate. A day when we proclaimed our rights and liberties. Now you run along and enjoy your liberties. Let's just hope you don't have to fight for any more of yours.
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LintLass
"When you can balance a tackhammer on your head...
05:28 PM on 07/04/2011
If you could 'care less,' then leave it to the actual LGBT people involved. Celebrate our declaration of freedom by *standing for some.*

I didn't ask you to *care,* I asked you to treat me as an *equal American.*

Hail Liberty.
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HUFFPOST SUPER USER
Ishmael1
A Man Born To Hang Ain't Gonna Die Of Drowning
03:01 PM on 07/04/2011
As I watch the wonderful film, "1776", still the BEST evocation of the time, I'm reminded of the sign-off line of "Scoop" Nisker, the news director of the seminal San Francisco underground rock station of the 1960's.

"If you don't LIKE the News, go out and MAKE some of your OWN!"
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Dh Barr
Bringing Clues to the Clueless
02:46 PM on 07/04/2011
I don't think Obama really gives a rats rear end about the gay marriage issue and that you are correct in your assessment that he is making a purely political calculation.
HUFFPOST SUPER USER
johnpw41042
$3 dollar bill here
03:30 PM on 07/04/2011
Dh, thanks for the insight, but don't you think people are wise enough that they already knew that? After all President Obama is a politician. From what I have been taught is that most are worried about the next election though it might be a long way off. It is just that some have varying degrees of humaness.
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LintLass
"When you can balance a tackhammer on your head...
05:29 PM on 07/04/2011
And if he threw himself on a sword for us, you'd say that proved something anti-LGBT, too.
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RED66
We must return to a Constitutional government.
01:21 PM on 07/04/2011
How about we get government completely out of marriage with the exceptions of ensuring the couple are of adult age and not too closely related?
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LintLass
"When you can balance a tackhammer on your head...
05:29 PM on 07/04/2011
How about you talk that way *after* everyone's equal?
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RED66
We must return to a Constitutional government.
08:59 AM on 07/05/2011
Nobody is equal. Each one of us has talents and skills that makes us different.

Government is the entity that stops gays from having equal PROTECTION.

Get them out and let people take care of themselves.
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HUFFPOST SUPER USER
too young but old enough
I already know how this is going to turn out...
02:16 PM on 07/05/2011
If the government was completely uninvolved with marriage, and there were no special societal considerations related to marital status, wouldn't that be a moot point?
10:40 AM on 07/04/2011
There is no right to marriage; that is why it's called a marriage "license". In fact, the marriage license is very limited: you can only marry outside a certain degree of consanguinity, you can only marriage persons, not objects or animals, and you can only marry at a certain age.

There is a right to procreation; that is the purpose (but not a requirement of) marriage. Gays as a class cannot procreate. Therefore gays do not have a valid purpose in marrying.

Marriage confers many benefits. The benefits are to encourage and facilitate procreation. To expand marriage benefits to a class of persons that cannot procreate would dilute and thereby weaken marriage.
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HUFFPOST SUPER USER
Michael F
11:57 AM on 07/04/2011
By your logic, fertility tests should be required prior to any marriage license. Since you don't advocate fertility tests for all marriage licenses, your argument is invalid.

Come on, man. Just a little logic goes a very long way.
12:08 PM on 07/04/2011
Just a little reading comprehension goes a long way, too. I said procreation is not a requirement of marriage. It would be repugnant to test marriage license applicants for fertility. But, it is impossible for gays as a class to procreate, which is not true for heterosexuals, so there is no purpose for gays marrying.
HUFFPOST SUPER USER
talkstocoyotes
11:09 PM on 07/04/2011
Fertility tests might cut down on the number of little country club Republicans being born. No good country club Republican is going to support that -- for themseves, that is.
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LintLass
"When you can balance a tackhammer on your head...
12:01 PM on 07/04/2011
Something being a civil license doesn't mean you can give minority groups unequal treatment and unequal protection of the law, just because some people don't like them, or have an unfounded religious belief that civil marriage is only for procreative purposes, which is untrue on the face of it.
05:47 AM on 07/04/2011
It's time Obama man, your very own parents would have been prevented from wedding in many states, back in the day, and your father might have been lynched too dude.
Cheers, Joe Mustich
(Gay) Justice of the Peace, and Universal Life Minister,
Red Studio Farm, Washington Green, CT USA
01:00 AM on 07/04/2011
Here's the deal. If you can convince half the people in your state plus 1 that gay marriage is OK, fine. What the president is worried about and what DOMA is designed to prevent is 50 percent plus 1 of the voters who show up to a bi-election in Vermont deciding the question for the people of Texas through a lawsuit which seeks to compel the state of Texas to acknowledge a Vermont gay marriage under the full faith and credit clause. Even if a majority were to favor gay marriage nationally, you can turn that tide quickly the other way by imposing views on others via a federal lawsuit. the new NY law is carefully crafted to attempt to avoid that sort of confrontation within the state, but it is only a matter of time before a suit attempts to push the debate from allowing gay marriage to compelling others to accept gay marriage and to formally tolerate it even if they believe it to be immoral. That is what the president is concerned about.
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LintLass
"When you can balance a tackhammer on your head...
02:23 AM on 07/04/2011
Your religious beliefs *don't* override the Full Faith and Credit clause, or entitle one to discriminate: actually, and that includes states with lower ages of consent for marriage, or closer cousins, having theirs respected by states that don't.

DOMA's already Unconstitutional, it just hasn't been ruled so.
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RED66
We must return to a Constitutional government.
01:23 PM on 07/04/2011
So one state must recognize the license issued in another?

I agree which is why my VA concealed carry permit must be recognized wherever I travel in the US.

I know you agree with that..........right?
09:18 PM on 07/04/2011
I will wait until the Supremes actual rule before I take your proclamation as fact.
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HUFFPOST SUPER USER
Michael F
11:50 AM on 07/04/2011
When the debate started years ago, conservatives said there was no legal justification. When the courts found one, they said that it was judicial activism and not enacted democratically. When legislatures granted marriage equality, the conservatives said that the people should vote.

Each time gays have met the new hurdles created by conservatives, they have moved the bar ever higher.
HUFFPOST SUPER USER
johnpw41042
$3 dollar bill here
11:59 AM on 07/04/2011
You are very correct in that the bar gets higher all the time. The Puggies/Baggies/NeoCons/Cons are always trying to find a law or creating one to hide behind to cover their bigotry. They tried and sometimes still do to hide behind their so-called religious beliefs. Now that New York has cancelled that out they will create new ways. I must say, they are talented in finding ways to discriminate.
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Nunnenj
Einstein, disguised as Robin Hood
10:55 PM on 07/03/2011
I hope that President Obama will come out for marriage equality. It is the correct thing to do and there is no better time than the present. Even if he continues his current stance, I know that the rights of GLBT community are in better hands with Obama than with any of the current Republican candidtates.