Defense of Marriage Act: Administration ends support
Carolyn Lochhead, Chronicle Washington Bureau
Feb. 24, 2011
The Obama administration's decision Wednesday to stop defending a 1996 federal ban on same-sex marriage marks a major victory for gay rights advocates and a fork in the road for Democrats and Republicans.
President Obama, who said his personal view on same-sex marriage is "evolving," must choose whether to remain to the right of former first lady Laura Bush on the pre-eminent civil rights issue of his presidency.
Republicans, fresh from a historic election victory driven by the economy, must decide whether to rally behind a cultural wedge issue of nearly a generation ago that now splits the GOP between its economic and social conservatives.
John Lewis (left, with megaphone) and partner of twenty four years Stuart Gaffney (right), both members of Marriage Equality USA, speak at the celebration of the US Justice department's decision to drop its defense of the federal Defense of Marriage Act on Wednesday February 23, 2011. Anna Vignet/The Chronicle
The Obama administration's decision Wednesday to stop defending a 1996 federal ban on same-sex marriage marks a major victory for gay rights advocates and a fork in the road for Democrats and Republicans.
President Obama, who said his personal view on same-sex marriage is "evolving," must choose whether to remain to the right of former first lady Laura Bush on the pre-eminent civil rights issue of his presidency.
Republicans, fresh from a historic election victory driven by the economy, must decide whether to rally behind a cultural wedge issue of nearly a generation ago that now splits the GOP between its economic and social conservatives.
The Defense of Marriage Act defines marriages as between one man and one woman for federal purposes.
Moral disapproval
Having previously defended the statute, the administration faced new court cases that required a decision on whether to apply a higher scrutiny to the law.
Attorney General Eric Holder, citing expressions of moral disapproval of gay relationships in the congressional debate 15 years ago, said he and Obama decided they could no longer defend the law's constitutionality. Holder left it to congressional leaders to defend the law in court, if they choose.
The decision is a milestone in the history of gay civil rights.
"The president and the attorney general have said that sexual-orientation discrimination must be presumed to be unconstitutional," said Evan Wolfson, founder and president of Freedom to Marry, who has pushed for same-sex marriage laws for more than two decades. "Excluding gay people from opportunities to participate in society, when done by the government, should not be given the benefit of the doubt as it has been throughout history until now."
House GOP leaders blasted Obama for changing the subject from the economy and failing to defend the law, but did not spring to defend it themselves.
"The White House is more interested in rekindling hot-button political issues to distract from the current debate over how to fund our government in the most fiscally responsible way," said Laena Fallon, spokeswoman for House majority leader Eric Cantor, R-Va.
White House spokesman Jay Carney said Obama has been "consistent" in viewing the law as "unfair and unnecessary." But as to Obama's personal views on same-sex marriage, Carney directed reporters to Obama's musings in December.
Obama described his views then as "evolving" and admitted, "I struggle with this." He said his "baseline" position is that civil unions provide couples "the protections and the legal rights that married couples have."
Awkward position
The administration is now in the awkward position of promising to continue to enforce the law while refusing to defend it in court.
"It's going to be difficult for the president to say the Justice Department will enforce" the law if it doesn't defend the law, said Heather Cronk, managing director of Get Equal, a gay rights group. "In a presidential election year, that's going to be a very nuanced argument."
Former first lady Laura Bush said last year that she supports same-sex marriage, joining prominent Republicans, including former Vice President Dick Cheney and Cindy McCain, the wife of Arizona Sen. John McCain, the 2008 GOP nominee for president.
GOP opinions split
The bulk of the Republican establishment remains opposed, and the GOP's large faction of social conservatives - although in eclipse since the Bush administration - demanded Wednesday that the party defend traditional marriage.
"With this decision the president has thrown down the gauntlet, challenging Congress," said Tony Perkins, president of the Family Research Council, which backed the law's enactment. "It is incumbent upon the Republican leadership to respond by intervening to defend" the law, he added, "or they will become complicit in the president's neglect of duty."
But party leaders do not want social issues to muddy their economic message, said Vin Weber, a top Republican strategist and former congressman from Minnesota.
"There is no question which side of this issue Republicans are going to come down on, and by that I mean the Republican congressional leadership and the presidential candidates," Weber said. "Having said that, no one wants it to become ... front and center going into the 2012 campaign."
Times change
Banning same-sex marriage was considered a political no-brainer for Republicans in 1996. But public attitudes have changed since the law passed the Senate with just 14 "no" votes, including California Democratic Sens. Dianne Feinstein and Barbara Boxer, and was signed by former President Bill Clinton.
At the time, no state acknowledged civil unions, much less same-sex marriage. Today, same-sex marriage is legal in the District of Columbia, Massachusetts, Vermont, New Hampshire, Iowa and Connecticut. An estimated 50,000 same-sex couples have married in the United States.
Opinion polls show the public divided over same-sex marriage, but support is growing.
December's Senate vote to repeal the "don't ask, don't tell" ban on openly gay members of the military was nearly the reverse of the 1996 marriage vote, drawing support from eight Republican senators, including conservative Richard Burr of North Carolina.
"You live by the wedge, you die by the wedge," said Nan Hunter, a law professor at Georgetown University who is affiliated with the Williams Institute, a pro-gay think tank at UCLA. "It's ironic that gay rights issues may end up being one of the most problematic internal wedge issues that the Republican Party is going to have to deal with."
Carolyn Lochhead was the Washington correspondent for the San Francisco Chronicle, where she covered national politics and policy for 27 years. She grew up in Paso Robles (San Luis Obispo County) and graduated from UC Berkeley cum laude in rhetoric and economics. She has a masters of journalism degree from Columbia University. Twitter: @carolynlochhead
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