May 9, 2012, the day that President Obama completed his personal evolution on marriage equality, is a day I will never forget as long as I live. Despite the fact that a flurry of media reports and online chatter that day had led many reporters and LGBT activists, myself included, to expect an announcement–and even though by that point I’d already been married and working for marriage equality for more than six years – I was not prepared for the emotional impact of Obama’s words. Nor can I overstate their impact on me: sitting there at my desk, watching a President of the United States tell me and millions of other LGBT Americans that he respects and values our relationships, our marriages, and our families on an equal footing with his own, I broke into full-out sobs. After the remarks were finished I called my husband Michael at work; we cried together and told each other over and over how much we loved each other, overwhelmed by the magnitude of what had just taken place. I felt prouder to be an American that day than I ever had before.
Viewed alongside the Obama administration’s refusal to defend the paradoxically-named “Defense of Marriage Act” (DOMA) and the President’s pro-marriage equality positions on ballot measures in North Carolina, Maryland, Maine, Minnesota, and Washington, it becomes abundantly clear that Obama’s support for the freedom to marry extends well beyond mere words. However, with the Supreme Court poised to decide the fate of California’s Proposition 8 – and possibly that of dozens of similar state constitutional amendments across the country, depending on the scope of its ruling – it is time for Obama to once again stand up and speak out for marriage equality.
Why? Well, for starters, while the administration has filed friend-of-the-court briefs in lower courts arguing that DOMA forces the federal government to adopt an unconstitutional and exclusionary definition of marriage, it has not yet done so before the Supreme Court. And it has remained silent on the Proposition 8 case, a case which could potentially address the fundamental question of whether the freedom to marry for LGBT Americans is a right protected by the U.S. Constitution.
President Obama, himself a constitutional scholar, has so far declined to weigh in on this critical constitutional question. A reporter for Metro Weekly posed it directly to White House press secretary Jay Carney in a press briefing Tuesday afternoon, but Carney refused to offer further comment. The next day he went one step further, abruptly walking out of a press conference after being asked by two separate reporters about the Prop 8/DOMA cases.
However, pressure is mounting on the Obama administration to clarify its position. Ted Olson, co-counsel for the plaintiffs seeking to overturn Prop 8, urged the government last week to file a favorable amicus brief in the case, saying in a conference call with reporters that such a statement from the administration would have “great effect.” Prominent gay blogger John Aravosis accused the White House of ducking the issue and predicted that anger from the LGBT community will only increase the longer the administration sits on the sidelines. The Courage Campaign is petitioning President Obama and the Department of Justice to weigh in, pointing out that a White House brief asserting the unconstitutionality of state bans on same-sex marriage would “influence the Supreme Court, make headlines and help further move poll numbers” in the direction of equality. Richard Socarides, a prominent lawyer, LGBT activist, and former White House official under Bill Clinton, told BuzzFeed‘s Chris Geidner that the administration won’t be able to avoid taking an official position on Proposition 8 because the solicitor general will be asked about it during oral arguments. Socarides also noted:
“The opinion of the administration as expressed by the Department of Justice is almost always an important persuasive factor considered by the court. It is, after all, the opinion of the government.”
Finally, Greg Sargent recently wrote in the Washington Post that the President must file such a brief because it could help goad the Supreme Court into ruling broadly on the constitutionality of marriage equality itself (as opposed to issuing a narrower ruling applying only in California) and prepare the public to accept a constitutional right to same-sex marriage.
As Olson’s co-counsel David Boies and many others have said, marriage equality is the defining civil rights issue of our time. The tide of public opinion on this issue is changing at an unprecedented rate – in 1996, the year DOMA became the law of the land, a scant 27% of Americans supported same-sex marriage. Fast forward just sixteen years, and polls now consistently show that a majority of Americans endorse marriage equality, with support increasing across every age group and in every region of the country. Most importantly, though, young people favor marriage equality by overwhelming margins: a recent USA TODAY/Gallup poll pegged support for same-sex marriage among those under 30 at a whopping 73%. Tom Goldstein, publisher of the influential SCOTUSblog, predicts that in another twenty years, “it will be broadly (if not uniformly) accepted that discrimination against homosexuals related to marriage is invidious and irrational.” Quite simply, it’s no longer a matter of if marriage equality becomes law, but when.
President Obama made civil rights history in May when he affirmed his personal support for the right of same-sex couples to marry in states that allow them to do so. But now, with Americans continuing to embrace marriage equality at lightning speed and the precious civil rights of millions hanging in the balance, it’s time for President Obama to evolve once again: he must publicly acknowledge before the Supreme Court of the United States that the Constitution’s guarantee of equal protection under the law applies to all couples who wish to marry, regardless of the state in which they live or whether their spouse is named Michael or Michelle. If he fails to do so, it will be an ugly blemish on Obama’s otherwise stellar civil rights record. But if the President takes this historic step, this champion of LGBT rights — a self-described “fierce advocate” for the LGBT community — will also have evolved into a hero.
Originally posted at the Huffington Post.