Walking My Bummer Back. A Bit.

Rob Tisinai

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.


May 10th, 2012

Nah – I’m with you. Obama has been pandering on this issue for years, and I’m totally underwhelmed that he offered his “personal opinion” on this issue. It’s the same as Dick Cheney’s, after all.

I’d be much more impressed if he’d taken a position on Amendment One before it passed. But of course, he didn’t.

I’ll vote for him again, but I have much more respect for the ordinary people – your friends and mine – who brought us to this place. Obama’s only following their lead, and I think they should get the credit for that, not him….

Jay Jonson

May 10th, 2012

Thanks for walking back the bummer. We need to savor the victory after the disastrous NC defeat. You need to direct your analysis at what DID go wrong in North Carolina so that we do not repeat the errors in the referenda in Maine, Maryland, Minnesota, and Washington, rather than attributing to Obama things he did not actually say.

It is crucial that we win the upcoming referenda. We have to have better campaigns that the disastrous one we ran in North Carolina. Claude Summers at glbtq.com rightly declares that campaign duplicitous. We must not repeat the same errors.

Jim Burroway

May 10th, 2012


Obama did take a position on Amendment One before it passed. So you now have permission to be impressed.


May 10th, 2012

I’ll quote you one better, Jim, from May 8:

President Obama has remained relatively quiet on the subject. He did not directly address the amendment during his recent visit to the Tar Heel state last month. The Obama campaign released a statement via its North Carolina spokesman in March, but otherwise the President has stayed away from the topic.

So, while his two-months-ago statement – I haven’t found a direct link to it anywhere, BTW – is better than nothing, it’s not better by much.

As we all know, it were anybody else, there would have been fiery denunciations against the language of the bill – rather than a meek “The President doesn’t support it.”

So, I’m still not very impressed, sorry….


May 10th, 2012

(Look, I get that this is all about politics. I get that change is incremental, and that we’re not going to get things right away; this is really not a problem for me. Actually, I think probably if he had denounced the bill it might have gone worse; I get all that.

But the fact that it’s all about politics is also why I’m not falling all over myself about this event. I expect further backsliding, in fact. I just don’t see it as that important that a politician who’s been pandering for a long time about this issue finally stopped pandering – well, almost….)

Mark F.

May 10th, 2012

Maybe we all can just be mildly happy about this and move on to other things now.

Rob Tisinai

May 10th, 2012

Don’t be silly, Mark. If a tree falls in the forest, and we don’t analyze to death, did it really make a sound?

Priya Lynn

May 10th, 2012

Well, I don’t care what you guys say, this is a big deal and I’m glad I’m no longer morally obligated to call Obama a bigot.

Thom Watson

May 10th, 2012

I don’t think you have anything to walk back, and certainly nothing to apologize for. I felt much the same way yesterday, and Pam Spaulding very accurately described what it was like to be told to put her grief over North Carolina on hold in order to celebrate Obama’s pronouncement. I remember feeling the same despair and grief after Prop 8 passed in 2008 and being told to “get over it” and celebrate Obama’s election. No, we have to feel what we feel and for as long as we feel it. Yes, Obama’s presidency was historic. Yes, his announcement yesterday was symbolically important (even with all the caveats). That doesn’t excuse others within our community telling us we can’t hold him accountable, or that we have to get over our feelings about having our rights stripped from us or having our lack of rights written into the constitution.


May 10th, 2012

That language in the 9th Circuit’s opinion is what leads me to think that the SCOTUS will not hear an appeal. The decision is too narrow, California’s situation is unique in the country and I think that the SCOTUS will regard it as a state issue and not an issue for SCOTUS intervention.

Even if SCOTUS hears it I doubt that they would find Prop H8 constitutional, when it so clearly and unequivocally violates the 5th and 14th Amendments.

I am legally married to my husband in California (so is Rob, I think) yet there are thousands of otherwise identically situated same-sex couples who cannot now legally marry in California because of Prop H8.


May 10th, 2012

To use SCOTUS-talk, the issue of equal marriage is not “ripe.”

I doubt that we’ll see in our lifetimes an blanket decision from SCOTUS outlawing laws like NC’s Amendment 1 for the simple reason that marriage has ALWAYS been under the purview of the individual states. That’s why DOMA is unconstitutional and conservatively, I think Obama is probably right in his analysis that the 14th Amendment does not apply in those cases.

I think that we are going to have to fight this battle state by state, and when we whittle it down to a few die-hard southern states, then, and only then will the SCOTUS step in.

SCOTUS is not known for its moral courage. The Warren court under which many of us grew up was a fluke in the history of the court.


May 10th, 2012

Here’s another slightly more upbeat look at all this. Maybe people who know something about legal matters can say whether or not it makes good sense; I don’t, myself, and can’t tell….

Richard Rush

May 10th, 2012

As a person who personally remembers what life was like for gay people in 1969, I haven’t been this moved to tears since I read Anthony Kennedy’s opinion for the majority in the Lawrence v. Texas decision, although the moments after the vote to repeal DADT rank way up there.

I’m very thankful for President Obama’s statement. It’s a very big deal, and a major milestone in our quest for full dignity and equality. Please stop bitching.

Gene in L.A.

May 10th, 2012

Jay Jonson says “You need to direct your analysis at what DID go wrong in North Carolina so that we do not repeat the errors in the referenda in Maine, Maryland, Minnesota, and Washington,…”

The amendment passed by 60% of the 34.3% voter turnout. That means TWENTY-ONE PERCENT (rounding up) of North Carolinians banned gay marriage. This was a primary election in which the Democrats had no contest. The failure was in convincing enough supporters of equality to go to the polls. If people don’t vote, it doesn’t matter whether they support us or not.

Jay Jonson

May 10th, 2012

Gene in LA, well, yes, our side did not convince enough of our supporters to go to the polls, while the other side did. That is the way elections work. The side that gets the most votes win.

Why didn’t more voters go to the polls and vote for us rather than for our enemies? At glbtq.com, Claude Summers says it was because our side ran a fatally flawed and duplicitous campaign, where we conceded too much to our enemies and pretended the main issue was anything other than same-sex marriage and homosexuality. I agree with that analysis. Any other explanations?

Timothy Kincaid

May 11th, 2012

We lost in NC because our voters really don’t care all that much.

If you ask them they indignantly say”of course ,dammit. I’m no bigot and it makes me so mad how they treat you.”. But on eelection day she woke up late a s was in charge of bagels for the day and at noon had to call the bank and the the meeting ran late and the kids had to be picked up and she just didn’t make it to the polling place (oh god, was that today?).

The good news is that their side doesn’t either.

Unlike 2004, few people showed up to protect marriage from the homoseeexxxshuls. But the republican primary was divided so they showed up to give their support to Mitt or to Anyone But Mitt and since they were there anyway…

58-42 in a Southern State in a Contested Republican / Uncontested Democrat primary is a cause for celebration. I’m serious.


May 10th, 2012

Rob, you are right that public statements matter, but you are also not taking into account all the public statements Obama and the administration have made on the subject. The article bls links to at Metro Weekly magazine does a really good job of consolidating all the work the administration has done to undermine anti-gay marriage laws, and in using legal arguments that limit states’ abilities to make marriage law. Chris Geidner at MW was also interviewed on Michaelangelo Signorile’s show on Sirius today and used the Loving v. Virginia as the example. One can simultaneously believe that marriage is a state issue while also believing the Federal Constitution puts limits on what, exactly, the state can do – in that case, they cannot limit the rights of marriage based on race.


May 10th, 2012

Richard, I plan to keep right on bitching, thanks; bitching’s the reason the gay rights movement got going to begin with, is the only thing that’s ever gotten any minority group anywhere.

Frankly by now I’ve gotten really tired of watching the majority vote away a minority’s rights without a squawk from anybody in power. From my point of view, it’s way, way past time somebody in power said something negative, in public, about this – and not only for our sake. There’s a very important principle at stake here, and nobody seems to give a damn.

I call for much, much more bitching….


May 10th, 2012

To counter Rob’s argument in the post, I’d just like to point out that the question is not whether there is a right to same-sex marriage. Marriage is a fundamental right, at least in the view of SCOTUS (in, I’m told, 18 separate decision dating back to 1888). As nearly as I can figure it, the question then becomes, the comments from the 9th Circuit notwithstanding, whether the government can demonstrate a compelling interest in excluding same-sex couples from that right, whether it has been specifically recognized or not.

Any takes on that?

Richard Rush

May 10th, 2012

bls, apparently I wasn’t clear when I said, “Please stop bitching.”
My intent was, “Please stop bitching about Obama.”

Gene in L.A.

May 10th, 2012

Jay Jonson, why the attitude? I thought my post was pretty straightforward, without any personal references. Why act as though you’ve got to explain to me how the system “works?” So your expert at lbtq.com says one thing and I said another. Who says the problem wasn’t a combination of his idea and mine, or those two combined with even more? Do we really need to stoop to this level of tearing down someone who disagrees with us? Even when we’re on basically the same side? No wonder we keep losing elections.


May 11th, 2012

Hunter, you also have to demonstrate that gays are a “suspect class” (very specific term with very specific requirements), and that the ban carries irreparable harm. In their finding, the 9th Circuit also found something revolutionary: gays comprise a suspect class. Something not established before, and with far-reaching consequences that would allow us to piggy back off innumerable existing decisions if upheld.


May 11th, 2012

Perhaps this really was the best Obama could do at the moment – and I’m hoping that article is right that they are working behind the scenes on the legal aspect. Perhaps he is afraid that going further would actually be more toxic (although I don’t see how much more toxic it could get than 40+ states that ban SSM, I must say).

Maybe we could also starting pointing a lot more often to this guy, and this video, going forward….


May 12th, 2012

(Here’s the YouTube version of that video; it’s better quality and loads faster….)

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