Obama on gay marriage

One of the things that got me interested in Barack Obama as a Presidential candidate was the answer he gave, in a church venue, sometime in 2007 – I’d be grateful to anyone who can point me to the video – on the question of gay marriage. He said, as I recall:

1. My church holds that marriage is between a man and a woman.
2. The principles of religious liberty mean that the government shouldn’t tell my church that it’s wrong about that.
3. Other churches believe otherwise.
4. The government has no business telling them that they’re wrong, either.
5. The definition of marriage should be left up to individual churches.
6. The government should define and protect a status of domestic partnership open to any adult couple.

Shorter version: since gay marriage is bitterly controversial among various religious groups, and the state doesn’t need to take a position with respect to that controversy, it shouldn’t. Andrew Sullivan calls this “cowardly,” but in any other context he’d recognize it as reflecting Obama’s Oakeshottian desire to avoid having the state take a stand on one side or the other of a social conflict unless justice demands it.

That seems to me to be both right and politic. I understand why the belief of some churches that marriage is only a male-female thing profoundly offends some gay people. But I think the desire to have the government tell (e.g.) the Catholic Church that it misunderstands one of its own sacraments is not a desire that ought to be granted. On the other hand, if the state recognizes pairwise domestic partnerships, denying equal recognition to same-sex pairs seems obviously wrong. (And no, I have no trouble seeing why multiplicity, or arrangements involving minors, are different questions that ought to get the opposite answer.)

Obama has continued to say since that he believes that marriage is between a man and a woman. But he also opposed California’s Proposition 8, albeit not as loudly as I would have liked. He hasn’t said anything since that leads me to believe that he’s changed his original position. He continues to say that he wants DOMA repealed, though he hasn’t moved on that.

This, I think, answers the puzzlement about how Obama, a decent human being, could want to deny gays the right to marry. He doesn’t.

Footnote No doubt Glenn Reynolds will welcome the news that his President agrees with him about “separating marriage and state,” and will stop saying that Obama is “anti-gay-marriage.”

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

28 thoughts on “Obama on gay marriage”

  1. Isn't so much of the problem here one of semantics, which means it is really about meaning, and who gets to decide what means what? Isn't about who gets to say whether marriage = 1 man + 1 woman? Obama's position, as you outlined, that the state should simply "define and protect a status of domestic partnership", is explicitly coming to the defense of those who can't tolerate gays being called "married" by choosing to use a different label.

    It would be as if, out of respect those who viewed blacks as inferior, we did not call them "human", and instead called them "bipedal primates", yet with all the benefits and rights that whites enjoy. Separate but equal, right? A common rhetorical argument against gay marriage is that marriage is defined as being between a man and a woman, and thus it should remain that way. Putting aside for a moment the fact that that this is only a clever rhetorical trick designed to mask their true feelings, they are right that it has been so defined in the past. But does that mean we must continue to define marriage in a discriminatory way? Does that make it OK? Appeal to tradition is a logical fallacy with zero merit.

    Of course their real problem is either religious or from disgust – neither of which has any merit as an argument, unless we become a theocracy or radically rewrite the constitution in some way.

    If the public is so bent on marriage retaining its heterosexual colloquial definition then it has no business being on the books anywhere. You can call domestic partnership whatever you like in private, but if our only option is either to institutionalize discrimination or not, then we must all loving, committed partners accept a new status.

  2. o avoid having the state take a stand on one side or the other of a social conflict unless justice demands it

    The obvious response: Justice does demand it.

  3. I've of two minds about this.

    On the one hand, Obama's statement about gay marriage is tentative and somewhat cowardly. Nobody is going to make a church marry two people of the same sex if they don't want to. We don't force the Catholic Church to perform marriage ceremonies for people who aren't eligible to be under RC doctrine.

    Similarly, we don't allow churches to define what marriage means and who get to call themselves married. Again, divorced Catholics who have not received an annulment and remarry are not considered married by the RC Church, but civil law takes no notice of this.

    On the other had, Obama's statement is certainly the strongest one ever by a sitting President with respect to the rights of gay people. If what Obama proposed came to pass it would represent a tremendous increase in the civil rights of LGBT Americans. They'd still be second class citizens, being told by the government that they have to call their loving union something other that marriage, but as long as that union conveyed all or most of the federal rights and privileges associated with marriage, but they'd be a lot less second class that before.

  4. No proposed or enacted same-sex marriage measure I've heard of says the government should tell any church its definition of "marriage" is wrong. That's a straw man–albeit one that same-sex marriage opponents are using as a scare tactic.

    THe proposal I and many others think makes the most sense is for the government to deal *only* in civil unions, for straights and gays alike, and leave marriage entirely to the churches. If you want to get married, find a church that will marry you. Otherwise what you have is a civil union. But church marriages and civil unions should have identical rights, requirements, and privileges under the law. Or perhaps everyone should be required to obtain a civil union, with marriage as an additional option for those who want one.

  5. As I understand the President's position, it's identical to the one Swift Loris outlines: th government defines domestic partnership, and lets people go through whatever religious marriage ritual they want, or skip it, without any effect on the legal status of the union. Contrary to what Chuchundra says, under that approach there would be nothing "second-class" about the unions of gay couples; legally, they would be identical to the unions of straight couples. Neither one would be called "marriage" by the state, because "marriage" would no longer be a legal status. I'd be interested in Tom's explanation as to why justice demands that the state go beyond that and insist that gay unions be called "marriage" under the law.

  6. I think we already have, for heterosexual couples, the situation desired, in which "people go through whatever religious marriage ritual they want, or skip it, without any effect on the legal status of the union". It's just that the legal and religious partnerships are called "civil marriage" and "religious marriage", and for convenience clergy are allowed to act as agents of the government and perform the legal marriage as well as the religious ceremony.

    It seems politically impractical to try to change that by surrendering the word "marriage" to religious people and changing all the laws to refer to "domestic partnerships" or "civil unions" instead. For one thing, opponents of same-sex relationships would point to that as proof that, as they've been saying, the homosexual conspiracy is trying to destroy the institution of marriage. For another, why should nonreligious people suddenly have their marriages become something else because the government has decided that the word "marriage" is now owned by the religious?

    While it's still going to take some time, it seems much more feasible to continue on the course taken by five states and DC and extend civil marriage to same-sex couples.

  7. Eli, your analogy starts off fine, but it doesn't finish.

    1. Some people throw a tizzy fit if black people are called humans, but agree to calling them bipedal primates.

    2. The rest of us say that's fine, and proceed to go through every law, eliminating the word "human" and substituting "bipedal primate."

    3. There is no longer any "separate but equal" legal treatment because there are no legal rights or responsibilities attached to being human.

    In fact, that's the perfect analogy — not too long ago, people who thought whiteness made them superior benefited from laws that gave white people extra rights and responsibilities. It would have killed them to start calling all the other people "white," so the rest of us got all the references to whiteness deleted from the law. They're still free to think it makes them superior, but it no longer gives them any legal benefits.

  8. Mark: I think to make sure Tom understands you, you should rephrase your last sentence to:

    I’d be interested in Tom’s explanation as to why justice demands that the state go beyond that and insist that any unions be called “marriage” under the law.

  9. Does anybody see Obama investing political capital in the federal abolition of civil marriage? Sullivan is right in a sense to call this cowardly and inconsistent. It's also commonsense, prudence, and statesmanship to avoid unwinnable and unncecessary fights when there is work to be done.

  10. I understand Obama is trying to thread a needle with this one, but the position is ultimately unsatisfying at least to me.

    Both same-sex and opposite-sex unions must have the same name to minimize litigation around the civil equality of the unions. Otherwise I foresee years of litigation on, e.g., whether one partner in a CU can be forced to testify against the other, whether a hospital can be forced to allow one partner to visit the other, etc.

    I suspect not only non-religious opposite-sex couples would object to having their marriages "downgraded" in the eyes of the state. There would be those religious types who would at least profess outrage that the state of, say, California no longer considered them married, but merely CU'd.

    As a practical matter, marriage equality is the end state to go for, with CU's (or DP's, or whatever) as an interim step that may be more achievable in the short run (see Washington, State of, compared with Maine, State of).

    Of course none of this matters to me personally, as I live in Michigan, where it will be a while before it's worthwhile launching an effort to repeal Section 25 of Article I of the Constitution.

  11. The question at hand is civil marriage, with civil consequences (tax, inheritance, medical decisions, etc.) Any church's opinion on the matter is utterly irrelevant. To legalize gay marriage is not to tell the churches what to do. The churches remain free to refuse to perform or recognize gay marriages, and can impose whatever religious consequences they wish on members of those churches who have gay civil marriages outside the church. Isn't all this obvious?

  12. I would have no problem with dropping the name "marriage" from all civil unions, heterosexual and homosexual, but that is never going to happen and it is silly to talk about it. As long as the government keeps the name "marriage" for heterosexual civil unions, the Equal Protection Clause demands that it apply it to homosexual unions. The Supreme Court has made clear that discrimination based solely on animus is unconstitutional.

  13. …Under [Obama's] approach there would be nothing “second-class” about the unions of gay couples; legally, they would be identical to the unions of straight couples. Neither one would be called “marriage” by the state, because “marriage” would no longer be a legal status.

    He's said same-sex couples should have all the legal rights conferred by marriage, but I haven't heard him make this specific proposal with regard to terminology.

    The problem is to get institutions (such as hospitals) not to make distinctions based on what a union is called. If opposite-sex unions are legally known as marriage but same-sex unions are known as civil or domestic unions, institutions whose policies are worded using the term "marriage" have notional grounds to discriminate against unions that are not called marriage.

    This has been happening in New Jersey, even though the legal rights of same-sex and opposite-sex partners are supposed to be the same. When such discrimination is brought to court in individual cases, the plaintiffs win; but not everyone so affected has the resources to sue.

    And in the case, for example, of one partner being prevented from visiting the other partner in a hospital, that their legal rights are being infringed doesn't help much if the ill partner dies before a lawsuit can be brought and won.

    If the term "marriage" is taken out of the equation, institutions would have to rewrite their policies to remove it, and the wording of the policies would no longer be grounds for denial of rights, even notionally.

    Obviously any solution that would result in same-sex unions unequivocally being universally recognized as having 100 percent equal rights under the law with opposite-sex unions, whatever either be called, is the goal. The issue is how to make that happen.

    There will be people in every segment of the population who object to any measure to achieve equality, on a variety of grounds. The trick, it seems to me, is to minimize the number of those who object.

    Since it appears that most of the objections to equality are coming from religious people and have to do with terminology, allowing churches the sole authority to apply the term "marriage" should provoke the least amount of opposition and thus facilitate achieving equality in fact as well as in law.

  14. The trouble with the Obama position, and even more so with the positions stated here by Swift and Mark, is that they assume good faith and honesty on the part of opponents to SSM, and the fact is that this is an invalid assumption. (Equivalent assumptions would be that creationists would be 'satisfied' if they merely got the chance for 'equal time' to pres3ent their Bible-based fantasies, or that abortion-opponents would be 'satisfied' if they merely succeeded on getting the latest roadblock to abortions placed into law.)

    The fact is that none of these are true. The opponents are 'limited' by the inconventient court decisions againt them, and the fact that they know that their 'full program' is, so far, incapable of winning majority support. But creationists want no schools teaching evolution, anti-abortions want no doctors performing evolution, and 'anti-SSM propoentns' actually – as has been shown by numerous quotes they have been made — want all of our rights taken away, and if homosecuality can no longer be re-crimininalized, at least our relationships can be given no legal force whatsoever, and we can be forced as far back into the closet as possible. None of those positions are yet politically viable, but during a month where a Republican Governor, not in South Carolina or Alabama, but in the 'liberal, Democratic' state of Rhode Island coul veto a bill allowing same-sex partners to make funeral arrangements for their partners — yes, it was passed over his veto, but I can assure you he picked up more vote from his veto than we will give the legislators for overriding it, merely 'changing the word' will do nothing but allow another 'slice off the salami.'

  15. I think getting government out of the marriage terminology and restrict it to civil unions/domestic partnerships is fine, but I've never heard anyone before Mark say that this is Obama's position. I think we need some more data to get to a "same facts" baseline.

    Salon wrote up the 2007 debate on gay rights that Obama participated in:

    http://www.salon.com/politics/war_room/2008/05/15

    I don't think Obama quite says "lets drop civil marriage and only have civil unions."

  16. I'm an enthusiastic supporter of the idea that the government should get out of the fraught business of defining "marriage", and stick to registering civil partnerships and let people's own religious establishments and consciences decide what they may call themselves. However, although I think this is logical and that hypothetical rational, principled opponents of "same-sex marriage" should embrace it, I am not unaware that (1) actual existing opponents of SSM are more often motivated by a desire to impose their views of "normality" on others than by a desire to protect "marriage"; and (2) politicians friendly to civil partnership are mostly too cowardly to propose such an idea. Also, gay-rights groups put forward an entirely understandable argument that they are unwilling to settle for less than equality, and that after hundreds of years of Civil Marriage settling for universal Civil Partnership would not be true equality. I don't agree with this stance, but I empathize, and one effect of it is that these groups often lobby against Universal Civil Partnership.

  17. Suzii, I think that's right. Except that marriage, defined heterosexually, is still on the books. I think the analogy to having "white" laws on the books is perfect.

  18. Re-reading the Salon link I provided, I think either Mark misheard or Obama misspoke in describing his own position. The closest I can see to his position on states having the right to choose whether to recognize SSM is that Obama doesn't oppose abolishing civil marriage, which isn't the same as saying he supports the abolition.

    I think I've read Obama saying something like "I may be wrong about this stuff" which opens the way for a change in opinion, like Al Gore did. Let's hope so.

  19. There's no easy solution to the problem of justice in recognition. The struggle over words seems absurd on its face, but it expresses a struggle over social recognition that it'd be unwise to dismiss. If the state stops calling heterosexual unions "marriages," many people will feel like something important has been taken away from them, & they will resist. And in fact, a kind of exclusionary recognition will have been taken from them. There may be more or less verbally clever ways of skinning this cat, but I'm afraid there's no avoiding hard political conflict over the issue.

  20. @K:

    If the state stops calling heterosexual unions “marriages,” many people will feel like something important has been taken away from them, & they will resist.

    Even if the union is still called a marriage by their churches? I'd like to see a poll on that specific question.

    Reserving the term "marriage" to churches, I should think, while it might provoke resistance from some people, would neutralize it for more people. I'm looking for a solution that minimizes opposition and conflict, not eliminates it (there's no solution that would eliminate it). So for me the issue is what solution will inspire the least conflict.

    @Brian Schmidt:

    Re-reading the Salon link I provided, I think either Mark misheard or Obama misspoke in describing his own position.

    One of the Obama quotes in that piece makes him sound dismissive of the terminology question raised in the California Supreme Court decision:

    "[A]s I've proposed it, [civil unions] wouldn't be a lesser thing, from my perspective. And look, you know, semantics may be important to some. From my perspective, what I'm interested is making sure that those legal rights are available to people."

  21. This "getting the government out of the marriage business" argument is reasonable enough on its face, although it sounds pretty much like what my conservative relatives say when they're trying to find a comfortable place between supporting my equality and remaining loyal to their political tribe.

    But Henry gets to the core of its problem: having the government cease calling civil marriage "marriage," for the purpose of allowing gay people's equal participation in it, would be *at least* as politically difficult as simply letting gay people obtain civil marriage licences. Either option would aggrieve opponents of marriage equality by costing them their privileged status w/respect to marriage, but limiting the term 'marriage' to the churches' role would cost in addition the name given to that privilege. I don't see that going down well at all.

  22. @Swift Loris: "Reserving the term “marriage” to churches, I should think, while it might provoke resistance from some people, would neutralize it for more people."

    I don't understand why you think this. There is no conception of marriage equality that I've ever heard of that requires any church to marry anyone they don't want to. On the other hand, I can already go into some churches and have a full-on wedding, priest and everything, and walk around truthfully claiming to be married in the eyes of my church. That churches are free to act on this point is precisely why the fight is about civil marriage: only the state has the power to confer a universally recognized status, which is privileged by virtue of being granted to one class of people and withheld from another. Changing the name of the status the state grants and letting the churches disagree isn't going to change that. Equality opponents claim that marriage is privileged by God and tradition, but the only privilege that's enforced in the here in now is the one that's granted by the state.

  23. @piminnowcheez: I guess I'm missing your point. Many if not most same-sex couples won't have much trouble finding a church willing to marry them. Equality opponents have no grounds to object if the choice is that of the church rather than the state. They can object only on the basis that same-sex couples shouldn't have the same legal rights, and that's a much harder case to make.

    Of course it isn't going to please everybody, but it undercuts at least the "God" part of the "God and tradition" argument, which is typically used by opponents so they don't have to argue for unequal legal rights.

  24. I find it fascinating that, while many of my fellow liberals are lining up behind an idea, 'just don't call it marriage, for any couples' that has asbsolutely no chance of getting adopted — and which would be denounced, in operation, by gays the way that the, at first, seemingly 'reasonable compromise' of DADT was once it was implimented. That they support something that, afaik, has never been even accepted by any marriage equality opponent — and would not, for reasons I explained in my previous comment. (They are not looking to compromise, or find a way to accept SS relationships, they only argue against marriage because they can't pass laws prohibiting any form of public governmental recognition of them at all. See how the actual constitutional Amendments in various states played out, and how suits were instituted that went far beyond the way they were 'sold' to the voters.)

    But while we are — my apologies — wasting our time with semantic inanity — Ted Olsen, both in his opening statement and in his article in NEWSWEEK, using 'classical conservative' principles, has demonstrated how those principles not merely permit, but demand recognition od SSM.

  25. If arguments like Olson's can bring about civil marriage equality, nobody will be cheering more loudly than I. That's obviously the consummation most devoutly to be wished.

    I just don't see it happening anytime soon. I could be convinced that the no-state-marriage solution would be even more difficult to get through by a good poll, though.

  26. If the state 'blesses' only civil unions, and if I have my civil union registered by a public servant, and have no part of a religious ceremony, then is my partner's mother my mother-in-law? There is a linguistic element here, and it *can* work in favor of SSM. One of the better arguments I have heard in favour is that it helps normalize the relationships it applies to: it's not just the man that Uncle Jim lives with, it's Uncle Bob, etc. It gives a recognized and comfortable name or title to people who otherwise need a roundabout or cumbersome explanation (which the ubiquitous 'partner' in my view does not, really, though maybe it will come to do so.)

    Of course for the people who resist normalization and insist on condemnation, that argument is not going to be persuasive …

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