You know how I felt about President Obama declaring himself in favor of same-sex marriage. I was gobsmacked. It’s politically risky. It’s symbolically powerful, in ways that Melinda Hennenberger noted sharply at the Washington Post. It pushed Senator Harry Reid, the next-highest-profile Democratic laggard on the issue, to support marriage equality, making full marriage rights pretty much the official platform of the entire Democratic Party. So I've been surprised by the number of people declaring that the announcement was too little, too late.
Maybe, yes, it would have been better for him to have made his declaration a few days before, when his opinion might have influenced the appalling vote in North Carolina, which on Tuesday joined all the rest of the former Confederate states—and, actually, most of the country—in writing its opposition to marriage equality into its constitution.
Okay, it's worse than that: The North Carolina law bans any recognition of same-sex partners or different-sex unmarried partners, no matter how insignificant. The amendment is pretty horrific—every bit as bad as Virginia's, where I try never to visit for precisely that reason. But does anyone think Obama’s announcement would have made a difference in that lopsided 61-39 percent vote? My heart aches for all the LGBT folks (and those who love them) in the state. But seriously? Would Obama’s point of view have brought it down to, what, 60-40? Is he that popular in North Carolina?
Here’s the other ground for carping: that Obama wrongly took a states' rights stand, saying that every state should be free to define marriage as it wishes. Adam Serwer and others think that Obama should have said that same-sex marriage is a fundamental right, and should push for every state to immediately gender-neutralize its marriage rules—and if they don’t, the president should urge either Congress or the Supreme Court to force them to do so.
I disagree—strongly—on policy, tactical, and political grounds.
First, the policy. Marriage is a state issue. It always has been, under the Tenth Amendment. Each state writes its own laws of marriage and divorce—who can marry and divorce, and on what terms. Fourteen-year-olds, with parental permission? First cousins? Waiting period, either to tie or untie the knot? Divorcing because of irreconcilable differences or mental cruelty? Depends where you live, and in what decade. You may think that's appalling, and that your idea of appropriate marriage should be imposed on every American, but well, so does the conservative American Family Association. That's the system. And I like this system. We're not really one country, folks. The people in Jones Hollow, Kentucky, where my stepmother is from, have one marriage culture; the Satmars in Williamsburg, Brooklyn, have another; and none of those would approve of the marriage culture in Marin County, California. Okay, so those might be hyperlocal views of marriage, but if you want to carve the U.S. up into just two cultures instead of many microcultures, Red Families versus Blue Families can explain how different our marriage views are. We can scarcely agree, as a country, on a president. Getting South Carolina, Texas, Ohio, and Vermont to agree on how to define and run marriage? Ha. On same-sex marriage, most states just aren't there yet.
Here's the truth: If we had national marriage laws, I would not be married right now.
The U.S. has only recently been able to break through and try out same-sex marriage, which is leading people to realize, albeit slowly, that it's no threat to anyone. But that's only been possible because our federalist marriage system allows each state to make its own decision. And because we have a federalist system, LGBT advocacy groups are able to challenge the one national marriage law that the U.S. has passed: the Defense of Marriage Act (DOMA).
In 1996, when it first looked as if Hawaii might try out same-sex marriages, the U.S. Congress passed DOMA. If it could have, Congress would have banned marriage equality outright, saying not only that the federal government wouldn't recognize marriages performed in the states, but make it impossible for states to do this at all (I believe that President Bill Clinton would have signed it, as he did DOMA). But it could not. Congress's lack of power to regulate marriage is precisely the ground on which the court challenges to DOMA are being brought. In these cases, LGBT groups aren't asking the Supreme Court to say that same-sex couples have a fundamental right to marry; they are saying that because the Constitution reserves this power to the states, the federal government doesn't have a choice in which marriages it recognizes and which it doesn't.
Let's be honest, folks: Same-sex marriage is a very recent new idea. We're not talking about interracial marriage, which was possible until states banned it as part of a comprehensive post-civil-war regime to impose slave-like status on blacks in every way but outright ownership. That post-Reconstruction moral panic—the attempt to enforce an ideology that black and white and yellow and brown were all separate species—was long, but historically temporary. Irish indentured servants and African slaves had been marrying earlier in American history. Allowing two women or two men to marry is a much more recent development. As I've written elsewhere, it really is a radical feminist idea, based on social developments between 1850 and 1950 that utterly transformed the West's marriage laws and philosophies. Before about 1750, marriage was a gendered division of labor—someone needed to butcher the meat while someone kept the books, cleaned the shop, and fed the apprentices. Together they made children, who were necessary labor, and had explicit jobs: herding the geese, or tending the fire, or being sent off at 14 to care for someone else's children and sweep their floors while saving up money to become a mistress someday.
Capitalism turned all that around. As each individual was freed to make her own living, independent of her spouse, Western marriage got redefined as a system of love and equal partnership. (How it works in individual marriages is beyond my scope for today; I'm talking about law and social philosophy.) Same-sex couples can and should belong in that system. (For more, see my book What Is Marriage For?)
But getting people there requires time. Some parts of the country have been more willing than others to extend that gender-neutral, equal marriage philosophy to marriage's entrance requirements. And what all the DOMA lawsuits are saying to the federal courts is this: let the states decide. The federal government has no power to write marriage's rules, or to pick and choose which marriages it likes and which it doesn't. The federal government's only power is to apply its own decisions—on such things as pensions, health insurance, immigration, Social Security—to whatever marriages the states make.
Obama has supported the repeal of DOMA unequivocally. First, as Chris Geidner has explained in great technical detail, the Obama Justice Department has refused to defend DOMA, and in fact has been filing briefs on the side of same-sex marriage. Second, the Administration supports the Respect for Marriage Act, which would repeal the law outright. (Here's what I want to go ask the advocates: If those lawsuits win, won't it mean that a North Carolinian female couple could get married in New York and still be married when they come home, at least to the United States of America? Won't they have hospital visitation, and be able to inherit from each other free of federal taxes, and so forth? Won't ERISA law consider them married? But I haven't done that reporting yet; I'll let you know what I find.)
More tactically, it would be terrible for Obama to talk about imposing same-sex marriage on states. The backlash would be horrifying—not just against same-sex marriage but against the imperiousness of the overeducated coastal elites. I get a little impatient with liberal straight folks who think that Doing The Right Thing is enough. I know I'm overcautious--I come from a different time--but there are still a lot of people who think it's disgusting to be queer, or even if they don't, just aren't there yet on opening marriage's doors. Those minds are more likely to open one at a time than if they feel their being dictated to by overeducated know-it-alls with no common sense.
A lot has been made of the fact that when Loving v. Virginia was issued in 1967, most Americans were oppsoed to interracial marriage. But their laws weren't. The California Supreme Court had ruled the same way 19 years earlier, in Perez v. Sharp, 1948. Most states had already dismantled their interracial marriage bans, leaving only 17 on the books in 1967. Loving was earth-shatteringly important--and it made it possible for my aunt and uncle to travel in the south, if they wanted to--but it was a mop-up operation.
There are still 30 states with constitutional amendments restricting marriage to male and female. Let's undo some of those before asking for a federal fiat imposing a foreign marriage ideology on the regular folk. In other terms, let the president's soft declaration of belief work to open people's minds, combined with the daily efforts of LGBT folks talking to our friends, colleagues, and families about why we want to marry. Let change come from the bottom up.
Law and culture change in tandem. The president's statement helps change the culture. (Check out ThinkProgress's assembly of newspapers' front pages, day after his announcement, and tell me his statement is too little to have an effect.) The administration's actions are helping to change the law. If he gets re-elected, I believe we will see DOMA repealed before 2016, even with a Republican House.