Obama and Same-Sex Marriage: He Owns It Now

by Hadley Arkes

Why did he rip the veil from our eyes? Why has President Obama disclosed that he is not, after all, opposed to homosexual marriage, as though none of us could have guessed? As Bill Donohue of the Catholic League has pointed out, Obama as a state senator in Illinois declared his unqualified support for same-sex marriage. The reservations, the feints of doubt, of serious moral questions still hovering in the air — all of that came when he made himself available as a candidate on a larger stage. But his administration, and his former solicitor general, had already shown their want of enthusiasm, or creative energy, in defending the Defense of Marriage Act of 1996.

And yet, why now, this display of candor? President Obama has chosen to dust off his dubious claim to be a professor of constitutional law, a position claimed with no plausible academic record and no evidence of publication to lend even faint color to that claim. But my own hunch, as odd as it may sound, is that this, at its core, is a political move. It was sober, calculating, crafty, not some late inspiration, ripening with the movement of events in the courts. Republicans have the winds at their back with the last election and the crisis over the deficit and Obamacare. But this move suddenly injects an issue that could throw Republicans off their stride; something that stops the action, makes the Republicans regroup and compare notes again. Obama could plausibly take Mitch Daniels to be the telling figure here: Daniels had dropped his guard and revealed the things that turn confident, competent Republicans into shivering jello, not quite confident that they can find the words they need. Daniels famously remarked that the Republicans had to put the “social issues” to the side, lest they distract from the pressing matters of the economy, the deficit, and Obamacare. By the “social issues” he meant of course those vexing issues of abortion and marriage, the issues that the so-called Establishment Republicans find it hard to talk about without showing discomfort.

Daniels had to backtrack when the reactions came in a wave. But Obama could not have failed to notice what had been revealed. Most Republican politicians at the national level get sheepish when they talk about these moral issues. Last night on television, neither O’Reilly nor Hannity chose to lead with this issue of same-sex marriage or treat it as a point worthy of their notice. In that respect, they reflect the blinders that most Republican politicians are quite content to fix to themselves. By any scale of measurement, how could the killing of 1.2 million humans every year in abortion, or the dismantling of marriage as a framework for the begetting and nurturing of children, be less important than the loss of jobs and the foreclosure on homes? But Obama knows that Republicans haven’t found a way of talking about these things; that most of their moves turn clumsy. They can fire up the base, but they run the risk of alienating that floating cohort of independents who feel tremors of fanaticism whenever a politician insists that we need to talk seriously about these things.

In the case of Newt Gingrich, his own record on marriage makes him singularly awkward in talking about marriage. To the extent that marriage becomes a salient issue in our politics, Newt has to recede. Either that or become an accomplice of Obama’s in helping him nicely mute the issue for the general public. Among the Republicans seriously considering a run for the White House, only Rick Santorum has insisted, contra Daniels, that these questions on abortion and marriage cannot be pushed to the edge, as things merely peripheral to our political life. Obama’s move will surely bring Santorum even more forcefully into the argument, and Obama is probably betting that the more Republicans talk about this issue, the more they will stamp themselves as slightly odd or eccentric to that swath of the public that recoils from people who seem overheated on these matters.

For the Republicans this will be a challenge — to find some artful way of talking about marriage, to appear sober, not frenzied. The task is to convey the sense that we cannot make light of this question, we cannot trivialize it without making ourselves in the same measure trivial as a people.

I suspect that Mike Huckabee may take the lead in finding a sensible way to talk about marriage, and he may provide a useful spur to other candidates to see if they can find a voice as deft as his.

But on the other hand, the best defense for the Republicans may be to shift the burdens back on Obama — and with a twist he could not have expected. Obama has now pronounced a judgment, and more than that, he has affected to speak from his competence as a man who has taught constitutional law. He has explicitly taken a position and invoked his professional competence to speak. He now owns the issue. It becomes proper now to ask him the kinds of questions that could not have been asked of a president who had announced no settled views on the subject. My suggestion is that the Republicans take it as the focus of their commentary now to invite the president to explain how he would guide us on some the questions that have perplexed this issue of same-sex marriage. Let’s ask the president earnestly to give us his judgment on these questions testing the coherence and rationale of the argument for same-sex marriage:

— Does he think that a “same-sex marriage” would be available to people of the same sex who are not gays or lesbians, couples who claim no erotic or sexual relation? Would it be available to two widows or two widowers, trying to pool their social security savings and deal with the medical expenses incurred by their late spouses? Gay and lesbian activists have opposed the inclusion of these couples with no erotic relation. Would the president, however, exclude them from the good he would make available now in accepting same-sex unions?

— But if the president joins the activists in insisting only on an erotic or sexual relation here, how would that relation be manifested? After all the activists and their allies in the courts have insisted that “consummation” can no longer be required: Not every marriage produces children, and older people can get married long past the age of begetting. But if consummation is not at all required for marriage as we have known it, would it now be absolutely required for a same-sex marriage? And how would the president claim to know, say whether two widows have consummated their union? Is there some further device, lurking in the shed of the people who have given us the scanners at the airport? Something in the style of Woody Allen’s “orgasamatron”?

— Is there some ground on which the president would rule out of same-sex marriage the union of a father and son, mother and daughter? We don’t encounter here the old concerns cast up with incest. And so what could be the problem — once one accepts marriage between people of the same sex?

— And of course, if marriage has nothing to do with begetting, if it can be entered into by people of the same sex, why is it confined to two people? What would the President say to the growing numbers of the “polyamorous” in the country? Their loves are not confined to a coupling. They are woven together in ensembles of three, four, and more. If marriage is about love, rather than begetting, why should these people not be allowed to have their love expressed in marriage?

As we approach the campaign of 2012, the Republicans should shake off their inhibitions and find some way of remarking openly on the truth that dare not speak its name: that for all of his pretensions to intellect, Obama has a track record in not knowing what he is talking about. The subtext should be that, on marriage, as in Obamacare, he has just not thought things through. He is altogether too blithe, too thoughtless, as he shows his willingness to recast an institution that has been bound up with the laws as long as there have been laws. And the best way of conveying the point is to take him seriously in the judgment he has now announced, on the basis of his credentials to speak on matters of constitutional law. He owns the issue now; it is his task to explain it to us. And to keep explaining it.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and was one of the architects of DOMA.

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