August 19, 2007

Making excuses on marriage

Posted by: Chris

In a piece for The New Republic, Jamie Kirchick echoed some of the same points I raised in my post about Mike Gravel's criticism of Hillary Clinton. Kirchick's point is that we shouldn't push the Democrats running for president to take a position on gay marriage, since the country isn't there yet. He bolsters his argument by pointing out, as I did, that gay marriage is a state-level issue, and thank goodness so:

Aside from being legally sound, stressing federalism is a smart political tactic. It appeals to conservatives who oppose gay marriage (like former Georgia Congressman Bob Barr) but agree that it is a subject best left for states. It also acknowledges that the president's power to enact legislation on gay marriage is extremely limited.

The most a Democratic president could do is repeal the Defense of Marriage Act, passed by a Republican Congress and signed by President Clinton in 1996. This law explicitly prohibits the federal government from recognizing gay unions. It's a terrible law: Even though gay couples are equal before the Commonwealth of Massachusetts and gay couples in Vermont have the same rights as straight couples, they are still denied over 1,100 federal marriage benefits.

A president could fight for its repeal, which would be a considerable accomplishment and open the door to granting federal benefits to gay couples in states where such unions are recognized. But marriage laws themselves are still within the purview of the states.

I agree with Kirchick's general view, though I think it's important to continue to press presidential candidates on marriage, even if they and the country "aren't there yet."  Interestingly, Kirchick's column comes the same week Andrew Sullivan, a former TNR editor, took another gay pundit to task for making excuses for politicians on marriage.

Jonathan Capehart, an editorialist for the Washington Post and one of the questioners at the HRC-Logo forum, penned a piece ostensibly about Bill Richardson's "choice" snafu but which ultimately ended up concluding that he didn't mind the candidates didn't commit on marriage. Wrote Capehart:

Many gays and lesbians couldn't care less about the political calculus involved in gay marriage. They are being denied basic civil rights, and they want them now. Sen. Hillary Clinton's instructive recollection about the charged environment that led to the passage of the Defense of Marriage Act in 1996, to head off an even more damaging constitutional amendment banning gay marriage, left more than a few people cold. That's understandable. …

That's why I don't fault Clinton, Sen. Barack Obama or former senator John Edwards for their opposition to gay marriage, even if their explanations leave me scratching my head.

Not exactly the words I'd use, because I do fault the Clinton and Obama for not showing leadership on marriage. For Sullivan, the problem wasn't so much this op-ed but Capehart's entire body of work as a columnist:

Capehart is an openly gay journalist with wide access to the media. He is of the same generation as the rest of us who have forged a revolution in public attitudes about homosexuality. He is of the AIDS generation. He is a black man wirting and working at a time when gay black men need all the support they can get. But I have never seen a piece of his, an editorial or a speech defending or advancing the case for marriage equality - for his own equality as an American and as a human being. …

Sometimes, a writer is called to stand up for something, rather than defend those who cannot stand for what's right. Too many gay activists in Washington have flunked that test. If we are not passionate about our own equality, how do we expect straight politicians to be?

I would agree with Sullivan that it's fair to expect of gays and those who call themselves gay-friendly in positions capable of influence to speak out in favor of full marriage equality. At the same time, I agree with Capehart and Kirchick that in the presidential race, at least, marriage shouldn't be the focus — not this time around anyway. If public opinion keeps moving in our direction over the next four years, and a few more states manage to extend full marriage equality to gay couples, then all bets are off for 2008.

It's not like me to be equivocal like this, but as firmly as I support the fight for marriage, the experience of the last five years since Massachusetts has taught us to pick our battles. Sullivan knows that himself, having praised the New Jersey Supreme Court's decision that allowed the legislature there the option of adopting civil unions.

I would hope that all four of us agree that, in a perfect world, the U.S. Supreme Court might, in a Loving vs. Virginia type ruling, conclude that every state's hetero-only marriage law violates the federal Constitution's guarantee of equal protection. But given the volatile politics of marriage and the possibility such a landmark ruling could be nullified by constitutional amendment, we can't hold our breath for such a ruling — which would be unlikely from the current court anyway.

So that means marriage is, for now, a state-level issue and saying so is not betraying our cause or committing a sin of Jim Crow proportions.

Tags: Bill Richardson, gay marriage, Hillary Clinton