LGBT Activists Beg Obama to Shift on Same-Sex Marriage: Why?

06/29/2011 07:21 pm ET | Updated Aug 29, 2011
  • Darren Hutchinson Professor of Law at the University of Florida Levin College of Law; Founder, Dissenting Justice

Robin McGehee's essay (here on the Huffington Post) criticizes President Obama for declining to support same-sex marriage. A New York Times article also reports that several LGBT advocates are angry that the president refuses to support same-sex marriage.

Why should Obama support this particular issue? McGehee says that Obama should support same-sex marriage for two reasons: 1. in order to lead and 2. to fulfill a campaign promise:

Presidents lead. They take principled stands, based on their values and convictions, and then they work to create a better world. And this president promised his LGBT supporters on the campaign trail that he would be their "fierce advocate." We took him at his word.

Sadly, he isn't living up to his promises...

This argument is not entirely true. Obama certainly promised to be a "fierce advocate" for LGBT rights. And when he fell short of that promise in the past, he received a great deal of criticism (see, e.g., here).

Yet, Obama never promised to support same-sex marriage. Instead, he has always stated his opposition to it. During the Democratic primaries, each of the leading Democratic contenders -- including Hillary Clinton and Obama -- opposed same-sex marriage. Accordingly, the fact that Obama refuses to do so now should not surprise people who actually listened during his campaign.

Also, it is unclear what LGBT rights movements would gain if Obama suddenly shifted course and supported same-sex marriage. A sudden change in position might look contrived. Also, it would not translate into any immediate policy gains. Marital law is still subject to state control. Federal law could overturn state law on this issue, but this would require a ruling by the Supreme Court. Many LGBT legal advocates, however, do not want the Supreme Court involved with such a decision because it could backfire. No one is exactly sure how Justice Kennedy, the swing vote, will swing.

McGehee also notes that several conservatives, including Dick Cheney and Laura Bush, have recently expressed support for same-sex marriage. There is one major distinction between Obama, Bush and Cheney: Only Obama is seeking national office. Many former politicians have embraced same-sex marriage and other controversial positions now that they no longer depend upon voters for their professional lives. Thus, the comparison falls quite short. Yes -- this position acknowledges that Obama makes political calculations, but all politicians do this. Rather than seeing Obama as some fierce messianic figure descending from above to unshackle the downtrodden of the Earth, savvy voters must view him as a politician seeking votes and reelection. Clearly, Obama has decided that opposing same-sex marriage will not cost him too many votes.

Finally, LGBT groups could probably get more mileage if they pressed Obama on issues for which he has direct influence. Marriage is regulated by state law. Federal law takes marriage into account in many entitlement and other programs, but Obama has stopped defending DOMA. Federal constitutional law can trump any contrary state law, but the Supreme Court has not held that denying same-sex marriage violates the Constitution.

Although the president could state a belief that same-sex marriage prohibitions violate the Constitution, he could not enjoin the operation of contrary state law. Furthermore, his opinion would not necessarily cause any particular judge to rule congruently with his beliefs. In other words, any gains from pushing Obama on this issue seem speculative at best.

Recently, LGBT groups have engaged in highly effective advocacy by pushing Obama on issues over which he has control. Marital policy is not one of those concerns. ENDA, a proposed statute that would ban employment discrimination on the basis of sexual orientation and gender identity, however, could use presidential support. Rather than pushing Obama to move on an issue in a way that no other serious Democratic contender has done, perhaps LGBT groups would gain a lot more if they pushed Obama and Congress on ENDA.

If Congress passed ENDA, LGBT individuals in all states would receive formal protection against employment discrimination. LGBT folks who are economically vulnerable would likely benefit more from the passage of ENDA than wealthier gays and lesbians, whose wealth provides some cushion against discrimination -- and allows them to relocate to gay friendly jurisdictions.

The marriage debate raises the issue of class stratification within LGBT communities. Symbolism does very little for people struggling financially. In many ways, however, the arguments for same-sex marriage have a lot to do with symbolic, rather than material, change. ENDA on the other hand would provide at least formal protection to LGBT people with respect to their livelihoods. It is unclear why marital rights should have so much more prominence than basic protections for LGBT workers.

A version of this essay appears on Dissenting Justice.