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Chris Geidner Headshot

Answer the Question

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As the nation celebrated its 234th birthday this past weekend, the picture of the lives of lesbian, gay, bisexual and transgender Americans has rarely been so front and center in the larger public consciousness.

Same-sex couples in the nation's capital can get married, though the federal government -- because of the Defense of Marriage Act -- does not recognize those marriages. The House of Representatives voted in June to give President Obama and his military leadership the authority to end "Don't Ask, Don't Tell," though the Senate has not yet acted on the change - and Sen. John McCain (R-Ariz.) has threatened to filibuster the defense authorization bill to which the repeal amendment is attached.

And, in the Supreme Court confirmation hearings for Solicitor General Elena Kagan this past week, the place of same-sex couples in marriage and the role of gay people in the military were daily discussion points.

Despite the movement toward equality on both fronts, though, equality is not yet a reality on either front.

Unfortunately, one of the most prominent people who fails to recognize the full promise of America for LGBT Americans is President Barack Obama. At a briefing with representatives from LGBT media outlets on July 1, Obama's senior domestic policy adviser, Melody Barnes, was in the unenviable position of explaining that failure in the most palatable way.

Barnes, who has suggested in the past a difference of opinion with the president on marriage equality, told those in attendance on Thursday that repeal of DOMA and extension of same-sex partner benefits where possible in the meantime was the "course" Obama has "identified" and "supported."

After several follow-up questions, the conversation ended at a point that was very similar to a question that came up in Kagan's hearings: Whether the 1996 law defining marriage as an opposite-sex-only institution at the federal level and protecting states from forced recognition of other states' same-sex marriages is unconstitutional?

Kagan did not answer the question posed to her about marriage rights, but Obama should.

The distinction between Kagan's status as potential justice and Obama's role as president is the key to the distinction between the level of forthrightness we should expect from each in their answers.

Kagan could be hearing cases at the Supreme Court about DOMA and other marriage issues and, accordingly, took the judge's equivalent of the Fifth Amendment at her hearings, saying at one point that "[t]here is, of course, a case coming down the road," and adding that she did not want to "prejudge any case that might come before me."

The President of the United States, however, is in no such position and has no such reason to take the Fifth. Although the Justice Department may be obligated to defend validly enacted laws, its decision regarding whether there is any legitimate ground for defending the constitutionality of a law like DOMA has no bearing on whether the president personally believes the law is constitutional or not.

This question, our constitutional scholar president knows, is different even from his view of whether he personally supports marriage equality. It is a question of his views of our nation's constitutional protections. Obama owes the LGBT community -- and the nation -- an answer about whether he believes DOMA unconstitutionally restricts the equal rights of same-sex couples.

Even if Obama wishes to avoid answering such a question, though, U.S. District Court Judge Vaughn Walker -- in one of the cases to which Kagan was referring -- is likely to force his hand in the near future. Walker has completed a trial challenging the constitutionality of Proposition 8 in California, which amended California's constitution to limit marriages to opposite-sex couples. The lawsuit was brought on federal equal protection and due process grounds and any decision is almost certain to be appealed to the Ninth Circuit U.S. Court of Appeals.

At that point, Obama will need to decide whether he wants the federal government -- which has thus far been silent in the case -- to take a position on the California law. DOMA is not being challenged in the case, so Obama needn't even take a position on the constitutionality of the federal law in order to oppose California's amendment to prohibit same-sex couples from marrying. And silence, though tempting, is not an acceptable answer from a president who promised to be a "fierce advocate" for LGBT equality.

The nation engaged in a celebration on Sunday -- a celebration of the power of words that lead to change.

This week is as good a time as any for the administration and the president to stop taking the Fifth, and put words to his -- and this nation's -- promise of equality.