All politicians make promises on which they cannot or will not deliver. That they do has to be one of the oldest truths in politics. You watch them at rallies and fundraisers, throwing promises out like confetti and know – with hardly a dash of cynicism – that political reality will swallow most of their campaign platform the moment they leave the dais and enter their office. How could it be otherwise? The political process (in Washington especially, but elsewhere as well) moves fantastically slow. There are always pressing issues that command a legislators undivided commitment; seniority (and lack off it) will usually block or ignore most items proposed; and a politician may find that they just do not have the necessary support to maintain a promise made to constituents. They might have tried very hard behind the scenes but failed. And invariably there will be politicians who will say whatever the crowd they are speaking before wants to hear. Speaking before Latinos, they are liberal on immigration; speaking before the Minutemen, not so much. You get the idea.
Gay voters across the United States are reading the news and wondering which strain of candidate is President Obama. In a forum in August, 2007, sponsored by gay and lesbian rights groups, Obama said it “is my strong belief that the government has to treat all citizens equally…And so my concern is continually to make sure that the rights that are conferred by the state are equal for all people. That’s why I opposed DOMA in 2006 when I ran for the United States Senate.” This, as can be expected, endured him to constituents that support legal same-sex marriage. DOMA, which stands for the Defense of Marriage Act, is a legislative bill signed into law by President Clinton, making federal recognition of same-sex marriage illegal and state non-recognition of same-sex marriages performed in other states legal. If there is a parallel between the gay rights movement and the civil rights movement of the 1960s, DOMA could be considered this movement’s equivalent to Jim Crow.
Gaze sweetly at your history book and she will return yet another modern day facsimile of the 1960s. To many, the pending case of Arthur Smelt and Christopher Hammer reenacts that necessary drama leading up to the landmark Supreme Court ruling in Loving v. Virginia. Both Smelt and Hammer, married when the California Supreme Court invalidated laws proscribing same-sex marriage, are before the federal court arguing that “by virtue of their marital status they are constitutionally entitled to acknowledgment of their union by states that do not recognize same-sex marriage, and [that] they are similarly entitled to certain federal benefits.” They convict DOMA of violating a host of constitutionally promised rights – their right to privacy, to freedom of speech, to equal protection, and to travel freely – and would have done to it the same that was done to the “Racial Integrity Act of 1924.”
The two men meet in court, however, an unlikely opponent. The Obama led Department of Justice (DOJ) filed a motion last week (June 15, 2009) for the court to dismiss all claims made by plaintiffs Smelt and Hammer. The DOJ argues that plaintiffs lack proper standing to bring the case before the court; that even if they had proper standing, federal court would be an inappropriate venue for this argument; and that the federal government does not issue marriage licenses or determine who can marry. DOJ officials go on to state that, while they are not asking the court to judge the morality or legality of same-sex marriage, it is because the case questions the legality of DOMA that it should be dismissed.
Naturally, this news came as a shock to same-sex marriage advocates (and anyone else who paid to attention to Obama’s campaign). Does he or does he not oppose DOMA – it is no longer clear. Perhaps sensing his diminishing credibility on this point, Obama dispatched spokesman Shin Inouye, who said the following: “The president has said he wants to see a legislative repeal of the Defense of Marriage Act because it prevents [lesbian, gay, bisexual and transgender] couples from being granted equal rights and benefits…However, until Congress passes legislation repealing the law, the administration will continue to defend the statute when it is challenged in the justice system.”
So, to state it plainly, the President does not favor DOMA but will not act against it unless the legislature acts first. Or, to state it even more plainly, the President will only side with gays if other people go first. This is a surprisingly disingenuous claim from the Obama Administration (though it is perhaps not without precedent) and odd given the context of its election. Aside, from the obvious question – why does Obama not simply propose legislation that would repeal DOMA himself – the claims of Inouye are hard to believe. Firstly, without needing to cite previous examples, a president has great latitude when it comes to instructing the DOJ. If they involve themselves or do not involve themselves in a case that will have a political outcome, it is in accordance with the wishes of the president. Quite simply, if a president can save himself a battle with Congress by affecting policy through the DOJ, they will see it done. To not do it is to not to care to do it.
Secondly, Obama won on a platform that favored repealing DOMA. Presumably, he intends to run for a second term, meaning he will curb the more liberal aspect of his agenda, but the electorate already voted for him (with enthusiasm, you will remember) in majority. To back track on what was a crucial promise to many of his supporters would seemingly diminish his support come next election. So, if it is in fact Obama’s concern that the political ramifications of his direct opposition towards DOMA, absent legislative of support, may cost him his reelection, then his calculations are beyond me. But it should be noted, political calculation being the most likely explanation, that this is cowardice of a high order.
Everyone has been in, heard of, or witnessed the grim stagecraft of a crowd who, upon seeing a stranger in peril and in need of help, turn dumb and steel their faces. It is sickening to watch and wrenching to participate in, but such circumstances happen all the time. The only relief comes when someone breaks the mental barricade between the anguished and the comfortable, the erect and the prostrate, and kneels down on the cold cement to inspect and upraise the downtrodden. Through the currents stirred by that solitary action, the wall will be shattered and a crowd may be awakened to an afore unfelt humanity. This trait is readily visible is mobs.
A small mob, the legislature, the executive, and the judiciary; they sit thus in silence – in fitful counterpoise – and roil bravely no bright line or hard convention.