Same-Sex Marriage as Civil Right (UPDATED)

The Obama administration is floating trial balloons about same-sex marriage, but won’t just come out and endorse it. As a supporter of same-sex marriage, this is distressing to me, but being wishy-washy and floating trial balloons is a distinct improvement over the Romney camp’s outright refusal to consider the matter. What we’re learning is that attitudes toward same-sex marriage are evolving, reflecting Obama’s purported evolution on the matter. 

Except for Iowa, only northeastern states and territories (D.C.) recognize same-sex unions, while thirty states (!) have outright banned them – including North Carolina just yesterday. 

Obama is caught between a rock and a hard place here. If he follows his head and comes out in support of same-sex marriage, he risks alienating a huge swath of the electorate – especially those in swing states. This is all about independent and undecided voters, and a vicious campaign based on a selective, phony reliance on obscure Biblical passages ensures that the homophobic drive to oppose same-sex marriage will continue to be strong, and risk Obama’s re-election. 

Unfortunately, this is the perfect opportunity for Obama to led on this particular issue. It’s a great chance for him to give one of those barn-burner, epic, historical speeches he’s known for where he appeals to people’s decency and common sense to try and change minds. 

The bans on same-sex marriage that are based on referenda should all be challenged in federal court as unconstitutional denials of fundamental civil rights. This isn’t a state issue, either. Loving v. Virginia, which banned state anti-miscegenation laws, held that marriage can indeed be a federal issue, and our Constitution doesn’t permit states to deny rights to its citizens based on majority vote. 

After all, had we asked North Carolina in the 1950s what its citizens (well, the ones who had paid the racist poll tax – abolished by Constitutional Amendment in 1964) thought about Black kids attending integrated schools or the abolition of “separate but equal” accommodation for “coloreds”, there’d also have likely been a withholding of fundamental civil rights. 

One lawsuit over California’s Proposition 8 appears headed for Supreme Court review which, if it strikes down the result of that legislation, would apply not just in the 9th Circuit, but throughout the country. Perhaps this is what Obama is waiting for, but it’s a missed opportunity to lead on the civil rights issue of our time. 

UPDATE: Apparently, President Obama has personally come out in favor of same-sex marriage, although his statement falls short of outright advocacy for any sort of policy or federal legislation to codify it. 


  • Perhaps he is waiting to get re-elected. We tend to see that the second term is slightly liberating, at least it was for past Presidents.

  • Maximillian Tresmond

    Alan, it’s time to raise this as a Lochner issue. I’m surprised it hasn’t been done before.

  • Maybe it is time to put the continued tax-exempt status of churches up for referendum.

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