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Federalism and Cheney’s gay marriage identity crisis

Gabriel Arana

June 1st, 2009

Speaking at the National Press Club, former Vice President Dick Cheney reiterated his support for gay marriage at a journalism awards ceremony.

Despite expressing support for gay marriage, Dick Cheney said he opposes federal recognition of gay marriage. It is an issue that he believes should be “regulated … at the state level.”

This is essentially a federalist argument—and a seeming compromise.

But there is an inherent contraction in Cheney’s gay rights position: he supports [CORRECTED: does not openly oppose] the “Defense of Marriage Act,” which precludes the federal government from recognizing same-sex marriages performed in individual states. Before DoMA, federal recognition of marriages relied almost exclusively on the states, but this power was wrested from the states by the federal government in 1996, an inherently anti-federalist usurpation of state power.

(In fact, this is the central issue in a recent GLAD suit, filed in Boston, that challenges DoMA. GLAD is arguing that DoMA infringes on Constitutionally protected state sovereignty.)

For one to support gay marriage on a state-by-state basis—based on an appeal to federalism—and also support DoMA is unprincipled. Cheney’s silence on DoMA might be a pragmatic decision, a way of avoiding a national confrontation over gay rights. Maybe some of the inconsistency is a natural product of trying to reconcile his membership in one of the most virulently anti-gay administrations in recent memory while at the same time wanting, as parents do, for his children to be happy.

This commentary is the opinion of the author and may not necessarily reflect those of other authors at Box Turtle Bulletin.

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John
June 1st, 2009 | LINK

His bigotry in advocating against federal recognition of marriage would deny the biggest financial benefits of marriage (social security survivor benefits, federal pension benefits, spousal medical benefits, married tax deductions, etc.) while continuing to burden gay couples with increased tax preparation costs and lack of protection while traveling or relocating within our own country.

I am not feeling the least bit grateful for Darth Cheney’s less than half-hearted support for the equal rights of gay and lesbian Americans.

Pender
June 1st, 2009 | LINK

DOMA has two parts. The first says that one state does not have to recognize another state’s same-sex marriage. The second part says that the federal government cannot recognize any same-sex marriages. If he supports only the first part of DOMA while advocating for state-level recognition of marriage equality, there is no contradiction at all.

John: He is more enlightened on marriage than Obama, and his opinion will do more to influence the right than anything one of us could say. You SHOULD be grateful. Equality need not be a left/right debate, and we only hurt our cause if we try to make it into one. Ted Olson, Meghan McCain, Steve Schmidt and now Dick Cheney all deserve our heartfelt thanks for supporting civil rights even while their party does not.

Timothy Kincaid
June 1st, 2009 | LINK

Despite expressing support for gay marriage, Dick Cheney said he opposes federal recognition of gay marriage.

Gabriel,

I don’t think that you have provided substantiation for this accustion.

As I’m sure you recall, DOMA has two roles, banning federal recognition and allowing states to not recognize marriages from other states.

The MSNBC article you references assurances that “…the Defense of Marriage Act … may be sufficient to resolve the issue”, but you did not note that “the issue” was not federal recognition at all but rather the right of states not to recognize marriages performed in other states. Cheney indicated that he supported one part of DOMA, but he did not – at least in this reference – say anything about the other.

While support for non-portability of marriage may be contrary to the Full Faith and Credit clause of the US constitution, it is not inconsistent with a federalist viewpoint.

You are accusing Cheney of being “unprincipled” because he supports a state-by-state approach to marriage and because you think that he supports the federal ban on marriage recognition.

But your guesswork about his position on the federal recognition clause of DOMA is not an adequate standard to make that accusation. Unless you have some evidence that Cheney support the ban on federal recognition, the premise of your commentary may have no basis.

Gabriel Arana
June 1st, 2009 | LINK

Tim,

How about the fact that Cheney said he’d support a constitutional ban on gay marriage, which would go far beyond anything DoMA ever did? Wouldn’t you say that constitutes, in your words, “support[ing] the federal ban on marriage recognition”? Of course this does not change the fact that he hasn’t stated he explicitly supports the other part of DoMA, but my point is more that it is inconsistent for him not to oppose it. I will, however, amend the post — it is misleading.

Timothy Kincaid
June 1st, 2009 | LINK

How about the fact that Cheney said he’d support a constitutional ban on gay marriage…

Again, Gabriel, I don’t think that your source supports this statement. What Cheney said is “I will support whatever decision he makes”.

This pretty clearly is consistent with everything else reported which is that he let Bush make administration policy but that he personally opposed the constitutional ban on gay marriage. It’s not a fair representation to claim that he supported a ban when he, on several occurances said the exact opposite.

Timothy Kincaid
June 1st, 2009 | LINK

Thanks for making the correction above. I think it may be useful also in the following sentence:

Supporting gay marriage on a state-by-state basis—based on an appeal to federalism—and also supporting DoMA is unprincipled.

Gabriel Arana
June 1st, 2009 | LINK

Yes, I guess you are right about that. It of course at least indicates enough support not to oppose it, but I think you are right in saying that he is willing to go along with the Bush administration, either way.

I’m hoping with the correction it’s more clear. What I care about is the overarching point — that supporting DoMA and state-level gay marriage is inconsistent. Whether it Cheney falls under this is, as you’ve shown, an open question. I do think he is avoiding a national confrontation over gay rights by not speaking out against it, at least.

Gabriel Arana
June 1st, 2009 | LINK

I think that’s a good change too, thanks!

Timothy Kincaid
June 1st, 2009 | LINK

I think I was confusing.

I wasn’t suggesting that highlighting “and also supporting DoMA” was a good correction. Rather, I was pointing out that we do not have any evidence that Cheney was “also supporting DoMA”. I was highlighting it to point out that this wording is present in your article but that it is not supported by anything.

Rather, I would have suggested that it be made clear that we don’t know that Cheney was supporting the federal ban and, in fact, it appears that he may actually hold the position that states define marriage, not the federal government, or the exact opposite of “also supporting” the federal ban portion of DoMA.

That is, after all, what he said today.

Timothy Kincaid
June 1st, 2009 | LINK

“I do think he is avoiding a national confrontation over gay rights by not speaking out against it, at least.”

Yes. I agree.

Cooner
June 1st, 2009 | LINK

Hmm, I’m a bit confused over the argument over whether or not Cheney supports DOMA. True, he didn’t say explicitly one way or the other, but the argument seems sort of like a technicality.

He says right in the video: “Whether or not there ought to be a federal statute to govern this, I don’t support. … This has always been a state issue.”

How are we supposed to read this? How does this compare with traditional straight marriage? There may not be any federal statues regulating traditional marriage, but as the article argues, the federal government has always deferred to the states’ regulation of marriage, and the existence of the DOMA launches the issue into the federal sphere.

So either he’s arguing that individual states should be able to allow same-sex marriage, but the federal government shouldn’t recognize those marriages — which isn’t freedom or equality at all — or he’s arguing that the federal government should be blind to the distinctions states make in regulating marriages and should support all those marriages equally … which the second part of DOMA strictly prohibits. If he’s making the second argument, why can’t he come out and say something about how at least half of DOMA needs to go? (Other than just obfuscating for political reasons, of course.)

I’m not arguing that getting a little support from someone “on the other side” isn’t better than getting no support, or that he might not have a legitimate moral dilemma he’s struggling with on the issue. I just kind of have a hard time listening to him yammer about it and get really excited about his rather contorted position.

Bruno
June 1st, 2009 | LINK

Sometimes you can get a feeling for where a politician’s views on same sex marriage lies, and it can be a conglomerate of numerous opinions expressed and one’s own intuition. In Cheney’s case, given that his daughter is an out lesbian with a family, I think he believes in full marriage equality, however, he doesn’t necessarily think it should be spearheaded from the top down (in a typical GOP federalist fashion). I would guess that he’d feel that married couples in the states should get federal benefits as well, even if his “boss” felt otherwise.

Dick Cheney is a monster nonetheless.

Marlene
June 2nd, 2009 | LINK

Seeing that even though marriage is regulated by the states, the Fourteenth Amendment and the Full Faith and Credit Clause *requires* the states to recognize contracts made in other states — THAT is what DOMA violates!

It’s also one of the reasons why the US Supreme Court ruled in striking down all of the states’ miscengenation laws in Loving v Virginia: because of the portability of marriage and divorces, the state HAS to recognize them made in other states.

Cheney’s just trying to make nice, but as far as *this* American’s concerned, he should be locked up for the rest of his miserable life in a dank dark dungeon being waterboarded on a random basis every day. He is a war criminal.

Christopher Waldrop
June 2nd, 2009 | LINK

Marlene, that’s an excellent point regarding the 14th Amendment. I remember that being discussed when DOMA was passed. At the time White House lawyers said they thought it would (or could) be considered constitutional, but I never heard any explanation of that. And not being a lawyer I might not have understood it.

Also, I can’t help wondering whether Clinton knew it was unconstitutional, whether he was being pragmatic. If it got struck down, he could say, “Well, I tried!” and surreptitiously wink at the LTBT community. So far there’s been no legal challenge to it that I know of, but I think it’s only a matter of time. And if enough states allow same-sex marriage I think there will be too much pressure on the courts, if not Congress and the White House, to repeal DOMA. The trouble is, as Tom Petty said, the waiting is the hardest part.

Swampfox
June 2nd, 2009 | LINK

“Dick Cheney is a monster nonetheless.” – Bruno

Oh, please. Someone needs to write a book on the demonization of Dick Cheney. Obama has the position that marriage should only be between a man and a woman.

Christopher Waldrop
June 3rd, 2009 | LINK

So, Swampfox, are you then trying to tell us Cheney is really a decent guy who’s been maligned? Cheney’s been demonized, but he’s brought a lot of it on himself by his own actions and positions.

And please stop harping on Obama’s position. I don’t like it either, but if you’re going to go claiming that Cheney’s an innocent victim of “demonization”, maybe you should consider the complexities of Obama’s position. He made campaign promises regarding DADT and DOMA knowing they’d be a matter of public record regardless of what happened after the election. In 1993 when Clinton tried to end the military’s ban on homosexuals it resulted in an outcry that became a huge distraction. As distasteful as Obama’s pragmatism is, he’s still a politician, and he’s focusing on the economy and the 2010 elections. Or do you think we’d be better off with Republicans in control of Congress?

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