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I’m Going to be Such a Bummer Now

Rob Tisinai

May 9th, 2012

Barack Obama thinks the Equal Protection Clause of the 14th Amendment should not protect same-sex couples.

How’s that for a cold bucket of water?

Yes, the president personally supports same-sex marriage, but according to ABC News (who broke the story):

The president stressed that this is a personal position, and that he still supports the concept of states’ deciding the issue on their own.

In other words, the president does not believe the 14th Amendment mandates equal treatment of same sex couples.

Is that important? Remember Judge Walker overturning Proposition 8. Remember the heroic effort by Ted Olson and David Boies, the liberal/conservative dream team.  And most of all, remember their stirring federal argument, now making a long journey to the US Supreme Court:

There is no rational justification for this unique pattern of discrimination.  Proposition 8, and the irrational pattern of California’s regulation of marriage which it promulgates, advances no legitimate state interest.  All it does is label gay and lesbian persons as different, inferior, unequal, and disfavored.  And it brands their relationships as not the same, and less-approved than those enjoyed by opposite sex couples.  It stigmatizes gays and lesbians, classifies them as outcasts, and causes needless pain, isolation and humiliation.

If Barack Obama, a professor of Constitutional Law, were on the Supreme Court, he would vote against us.

Obama supports same-sex marriage, but he sees no Constitutional mandate. He thinks we should be treated equally, but he sees no Constitutional mandate. When it comes to this groundbreaking case, Barack Obama — believe it or not — is on the side of Maggie Gallagher, Brian Brown, and the National Organization for Marriage.

But is that important? I really don’t know. We’ve won a huge cultural victory today. I don’t regret my $100 Obama campaign donation and I don’t regret the two margaritas I had in celebration (though I had to stop blogging for a bit as I wondered how I got to the point where two margaritas were enough to make me tipsy).

No sitting president has ever done what Barack Obama has done. And his personal support for same-sex marriage, along with his view that DOMA is unconstitutional — presumably based on a Full Faith and Credit argument, rather than the 14th amendment — brings us oh-my-god-this-close to full equality, and sends a public game-changing message that likely won’t be diluted by Constitutional nitpicking. But in the midst of our celebration, we should still remember:

Barack Obama thinks the Equal Protection Clause of the 14th Amendment should not protect same-sex couples.

And now it’s time for a last margarita.

NOTE: Updated here.

Comments

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Jake
May 9th, 2012 | LINK

You have got to be kidding.

John
May 9th, 2012 | LINK

I think you’re reading into it too much. He didn’t specifically say that he doesn’t think the 14th Amendment doesn’t protect gay people, and there’s no reason to think that if he WERE on the Supreme Court then Olsen and Boies wouldn’t be able to convince him that it does.

TampaZeke
May 9th, 2012 | LINK

His evolution has leaped a long way forward but it isn’t quite complete yet.

@John, if you know how the 14th Amendment has been applied to marriage laws then the President actually did basically say that he doesn’t believe it applies to gay people since all marriage laws have been reciprocal nationwide due to the 14th but according to Obama gay people’s marriages should be excepted.

I don’t think he actually believes this any more than he believed that marriage should be only for male/female couples because “God is in the mix”. I think his latest position is based on updated political calculations.

I’m willing to give him a little bit of wiggle room here.

But, on another issue, I’m not so willing to wiggle…SIGN THE DAMNED EXECUTIVE ORDER ALREADY!

wally
May 9th, 2012 | LINK

I know what you mean, but I think this guy is actually challenging someone like you or Jeremy, John or Joe to file a law suit.
He may just be baiting your attorney at law.

This guy is smart!
Just saying…

w

Gene in L.A.
May 10th, 2012 | LINK

Box Turtle seems, on my admittedly short-term acquaintance with it, to enjoy this sort of not-quite-spoken-but-maybe-true baiting of its readers. I’m going to coast with it for awhile, but I’m not so far impressed by its connection to reality and/or dependence on evidence to back up what it says.

Rob Tisinai
May 10th, 2012 | LINK

Gene, can you be more specific about your doubts?

F Young
May 10th, 2012 | LINK

I agree with John that Rob may be reading into it too much.

It would still be possible for Obama to believe that the Equal Protection clause applies. It may be simply a concise way of saying that this is not a valid issue in a Presidential campaign since it is the states that have the jurisdiction to define marriage, not the federal government, which is another reason that the federal DOMA cannot be supported.

Hunter
May 10th, 2012 | LINK

Actually, Section 3 of DOMA, which is the part the administration says is unconstitutional, deals solely with federal recognition; Section 2, which they’ve sort of passed on, is the “states’ rights” section. So his remarks are consistent with the stance that the DoJ has taken on DOMA.

I’m not going to comment on the “equal protection” thing, since I’m really reluctant to parse what he didn’t say.

Hunter
May 10th, 2012 | LINK

On further thought, I will parse it — the statement that he believes same-sex couples deserve the same rights pretty strongly implies support for the idea of equal protection. Stressing that it’s his “personal” belief I take as him playing dodge ball with it — he won’t commit the government to a particular position in this statement, although everything the administration has done regarding same-sex couples reinforces the idea that his “personal belief” bears more than a passing acquaintance with the 14th Amendment.

CPT_Doom
May 10th, 2012 | LINK

I interpreted his statement to say two things – 1) he’s fine with civil unions or DPs that are equal to marriage and 2) he’s not planning any federal legislation to back up his stance. He has also come out against referenda like Amendment 1 and the FMA, so we know he’s also against discriminatory constitutional amendments.

Those positions are consistent with where he’s been, legislatively and legally, so far and I believe are calculated to reduce concern among his supporters who are anti-equality. He’s not rocking the boat too much, and that is also typical Obama, but in this case I understand it.

Think of the timing of this – right after Amendment 1, so he looks good, but can’t be blamed for its passage – and early enough before the summer conventions that the subject will be exhausted before the main campaign begins. It’s all part of his strategy to draw a clear distinction with Romney.

Bose in St Peter MN
May 10th, 2012 | LINK

I agree, Rob, that Obama took a cautious step forward by speaking in terms of his personal convictions about marriage, without challenging state laws and constitutional amendments.

While it’s accurate and significant that he’s taking a pass on applying the 14th Amendment at this point, that doesn’t strike me as a credible indication that he’d do the same if he were a Supreme Court Justice.

The roles of President and Supreme Court Justice are distinct enough to make a difference here, right? On the court, justices look to create a multi-decade legacy of careful, principled decisions; the presidency is short by comparison. On the court, justices are threading the words and principles of the Constitution with a couple hundred years of precedent, and then weaving each new decision into that fabric; the President is tasked with leadership on a minute-by-minute basis.

The most obvious difference, of course, is that a Justice Obama wouldn’t be concerned about keeping his job.

Stephen
May 10th, 2012 | LINK

The president of the United States of America has declared his personal support for SSM. He doesn’t get any credit?

He doesn’t govern by fiat so he can’t say, ‘The government… ‘ He’s not going to overturn DOMA through executive order because that can be reversed. If you want to better understand how the president, and the Democrats, have moved our cause forward I recommend the account of the repeal of DADT in David Korn’s new book.

How does anyone know what president Obama would do were he supreme court justice Obama? Why the tone of weary condescension? I’m completely bewildered. And now I will go donate some money to his re-election campaign.

Adam
May 10th, 2012 | LINK

“Barack Obama thinks the Equal Protection Clause of the 14th Amendment should not protect same-sex couples.”

This is an unsafe conclusion. Obama wasn’t providing a legal analysis, but a “personal” one. And, still, a politically expedient one.

Steve
May 10th, 2012 | LINK

@Hunter
The DoJ hasn’t weighed in on Section 2 because they didn’t need to so far. None of the lawsuits they intervened in actually challenge Section 2

esurience
May 10th, 2012 | LINK

I think you’re reading too much into this. First, remember that the American electorate is very ignorant about civics and the role of the President. He is probably just trying to allay fears that he is going to unilaterally impose same-sex marriage on all 50 states.

Under his administration the DOJ no longer defends DOMA and doesn’t believe it is constitutional to deny benefits to same-sex couples based on sexual orientation; that position doesn’t really fit with how you’re interpreting what Obama said here.

Richard Rush
May 10th, 2012 | LINK

If Barack Obama, a professor of Constitutional Law, were on the Supreme Court, he would vote against us.

I’m not so sure. If he were on the Supreme Court, he would not be forced into the minefield of running for reelection.

Andrew
May 10th, 2012 | LINK

You know, it’s like he’s trying to piss us off. I’m tired of being told that if only I were black rather than gay, then my full citizenship wouldn’t be optional. Obama is playing firmly into the hands of those who would happily drive an emotional (not rational) wedge between our communities, which is ridiculous and without reason. Because when he says that, I look at him and I see someone sitting comfortably at the pinnacle of the successes afforded to him precisely by the 14th Amendment deigning to offer me a personal, but not Constitutional, offer of equality. Because he’s such a good guy and stuff. He’s just a better man than the Constitution requires him to be.

I think that donation check just went into the shredder. Eat crap. (see I told you it was emotional… I haven’t had my first cup of coffee).

J. Peron
May 10th, 2012 | LINK

His “support” is as bold as that conservative Ron Paul, whose state’s rights excuse to violate individual rights was damned and should be damned.

Given this is a man who violates state’s rights on medical marijuana (more than Bush did) why this sudden respect for a doctrine he rejects everywhere else?

But it feels so good when they stop abusing us that we rush to their side, announce they must really, really love it. Talked about abused spouse syndrome.

Andrew
May 11th, 2012 | LINK

To folks who are asking us to wind down and take a deep breath: I hear you. I’ve been you, and I’m glad you’re there. Your sensible approach (good thing someone’s doing it) gives me license to indulge my entirely emotional response.

I’m sick to death of triangulation, evasion, and “dog-whistles”. I’m tired of other people feeling as though they have the right to the innermost details of my life and person. I’m tired of being their football.

And I’m amply tired of “allies” playing it safe, scarcely acknowledging my personhood, and then asking for a pat on the back (and a charitable donation) when they breathlessly declare, in public and everything, that perhaps I deserve to be fed scraps from the table in an honest-to-God dog bowl, under the table and everything, instead of in the dirt, behind the shed, in the driving rain like those other people have suggested. “Look at me! I’m totally not entirely against you!……. Got cash?”

As I said earlier, that this comes not only from someone who has risen to an office unimaginable to African American 10 years ago, but from the child of a mixed-race marriage — the nearest analog to the matter in question, is just insanely insulting.

When Romney doesn’t get it, I can understand, at least, that he has no clue what it feels like not to be privileged in every respect (except perhaps in how some see Mormons, but that’s a choice, and it’s Federally protected)… the man needs a translator and a call to service rather than mere blind ambition.

But Obama? He should know better. He should be shaming those who treat us with contempt. He should be sharing the personal experience of his childhood and expressing what it meant to him to be excluded for nothing more than his identity, and how that informs his support of equality generally, and the LGBT community in particular. If nothing else, he should be snapping those bigoted leaders in the African American community who declare that gay rights aren’t civil rights over his knee and calling them what they are: hypocrites, selfish, and self-righteous (aka “I’ve got mine – go f**k yourself”).

When a President renowned for his scholarship, with a background in Constitutional Law fails to see how the 14th Amendment applies to gay Americans, it sends a signal: gay rights aren’t about equality, because gays aren’t eligible for full citizenship. Qualified support for gay rights is about being magnanimous and charitable.

Hey, buddy – I’m not crippled, and you don’t need to pity my ass. Just give me what’s mine as a full red-blooded American citizen. Want to see my birth certificate?

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