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    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.



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    1. Tim on Aug 20, 2007 11:36:34 AM:

      I'm still boycotting TNR for the horrible job they did on the Beauchamp story and how they fired a gay man for leaking bits of the real story to some blogs.

    1. Tim C on Aug 20, 2007 1:05:55 PM:

      I don't disagree with you, but essentially this means that at the Presidential level(at least in re: same gender marriage), we are left with just two questions to be answered by Presidential aspirant: do you support or oppose the repeal of DOMA (and why), and do you support or oppose the FMA (and why). And then, how can you discuss DOMA without discussing the treatment under federal tax policy of same-gender marriage or civil unions as authorized by the states? Saying it's a state issue doesn't make it go away at the federal level.

    1. Citizen Crain on Aug 20, 2007 2:04:15 PM:

      Good point Tim, but I didn't say that federal recognition of gay relationships is a state-level issue. I said marriage is. In addition to DOMA and FMA, there are all sorts of questions about federal recognition of gay couples, at least until we can marry in all 50 states. Here are just a few:

      1. Federal recognition for civil unions.
      2. Federal recognition for state or local domestic partnerhips.
      3. Federal recognition for gays in long-term relationships who live in states that don't have either CUs or DPs.
      4. Immigration rights.

      Saying marriage is a state-level issue does make marriage "go away" as a federal level, except as a bully pulpit issue or potentially a constitutional claim. As far as the latter, the president's power is limited to appointing judges who are open to that argument.

    1. Sean on Aug 20, 2007 4:11:55 PM:

      "If we are not passionate about our own equality, how do we expect straight politicians to be?"

      Marriage is a federal issue. Gay people exist in every state.

    1. Double T on Aug 20, 2007 5:22:00 PM:

      Gay Marriage is similiar to Blacks having the right to vote in the South. In principal they are both isssues at the State Level.
      However, in practice, if the Federal Govt' did not step in, Black would still be sitting in the back of the bus with us.

      Let me ask the room this question. What year do you see Gay Marriage becoming a reality?

    1. Bloggernista on Aug 20, 2007 5:48:16 PM:

      Its true that most Americans are not yet with us on marriage and I believe its our responsibility to do the work to get them there. That means making the public case that we deserve equal treatment under the law, that our relationships are as worthy of the freedom to marry as opposite-sex couples and advocating in the legislatures, in the courts and through the media.

      In the next few years there are a number of states that could move to marriage equality such as NJ, CA, CT, VT, DC and MD. We need to be strategic about moving the issue forward in those areas and advocating for federal rights and responsibilities.

      At some point it is going to take a Supreme Court decision to achieve marriage equality throughout the country. I don't think that is going to happen soon, but that is not a reason to fight for marriage as hard and as smart as possible.

      Chris makes a great point about pressing the presidential candidates on the repeal of DOMA and some sort of federal recognition of same-sex relationships until we achieve full marriage rights. That doesn't mean that we should not ask the question. It means that we need to pay closer attention to what a president can impact that will move us towards the goal of marriage.

    1. Gregory Wonderwheel on Aug 21, 2007 6:10:33 PM:

      "Picking your battles" verses "standing up for what is right" is a perennial choice for everyone who wants a better world. But where on the slippery slope does being quiet in order to avoid a battle you can't win simply turn into silence on the question of pink triangles because speaking up will get you killed? It seems to me that not criticizing candidates who oppose equality in marriage is just another way of impowering helpessness.

    1. Citizen Crain on Aug 21, 2007 6:40:38 PM:

      I agree entirely, Bloggernista. Well said.

      As for "Gregory Wonderwheel," your Holocaust analogy is just downright silly. Standing up to genocide is not the same as pushing for marriage strategically at the state level, while continuing to ask the question at the federal level.

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