Walking My Bummer Back. A Bit.
May 10th, 2012
I wrote yesterday that Barack Obama does not believe we are covered by the Equal Protection Clause, and that he would vote against us on the constitutionality of Prop 8. I’ll have to walk that back — though not as far you might like, and not for the reasons you might expect.
A friend has pointed out that when the 9th Circuit agreed that Prop 8 is unconstitutional, it did so because the proposition removed an existing right from California citizens. The Court declined to state that all bans on same-sex marriage violate the Constitution. From its decision:
Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason. Romer, 517 U.S. at 634-35.
Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in th first place
We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further, we express no view on those questions.
In other words, taking Obama’s statement seriously, if he were on the Supreme Court he might very well vote to strike down Prop 8 based on the Equal Protection Clause — but also vote to uphold bans on same-sex marriage in states that have never offered its citizens that right.
Some people have told me none of this matters. Obama supports equality exactly the way we want him to, and is just making a careful political calculation when he talks about leaving it up to the states.
But there’s so much irony in that reply! After all, we knew (didn’t we?) that Barack Obama supported marriage equality in his heart of hearts. Our celebration yesterday came entirely from the fact that he said it publicly. Public statements matter — that’s the point of yesterday’s rejoicing. And that holds true, not just for Obama’s personal views on marriage equality, but for whether he thinks it’s okay for the states to decide this on their own, against us, if that’s what they want.
And for everyone who’s telling me what a great victory this is, despite the legalese? Yes. I know. I sent Obama $100. I lifted a couple glasses in celebration. Well, three. Actually, four. And I wrote this:
Obama can claim another civil rights first. He hasn’t just broken the color barrier — he’s opened the yellow brick road. He’s giving back, repaying the fighters and activists of previous generations who made his own election possible, so that now, somewhere, in a tiny little no-name corner of the nation, a bright and talented gay kid has suddenly realized: I can be president.
Now I can think of one justifiable complaint: Damn it, Rob, can’t you let us have one whole day of unalloyed celebration before starting in on what’s wrong? And, yeah, I can see that.
Because the world truly did change yesterday.