Bench Memos

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President Have-It-Both-Ways


As Robert Alt notes below, apropos of President Obama’s preference for courts doing his left-wing dirty work for him, he “has said that he is against gay marriage, but he also opposed California’s Proposition 8, which was passed to undo the activist gay marriage opinion by the California Supreme Court.”

Even the president’s most fervent admirers are beginning to notice his fence-straddling.  Here’s Eugene Robinson in today’s Washington Post:

Does Obama’s stance in favor of repeal [of the 1996 Defense of Marriage Act] mean that he believes the federal government should recognize same-sex marriages? Does he also believe that, say, the state of Alabama should recognize a gay marriage performed in Iowa? If so, what is the practical difference between this position and just saying in plain language that gay marriages ought to be legal and recognized in all 50 states?

Good question.  As I explained in the first two weeks of this presidency, it is impossible to avoid the conclusion that Barack Obama is a backer of gay marriage who is afraid to say so.  Robinson exhorts him to be brave, concluding his column thus:

I’m not being unrealistic. I know that public acceptance of homosexuality in this country is still far from universal. But attitudes have changed dramatically — more than enough for a popular, progressive president to speak loudly and clearly about a matter of fundamental human and civil rights.

Robinson should get out more.  Gay marriage remains deeply unpopular with a strong majority of Americans.  And if the president came out for it, both he and it would surely decline in popularity.  That’s why he winks at his supporters when he demurs on the subject.  Let Justice Souter’s successor lead the charge.  Then, as Robert rightly says, Obama can claim “the issue has become ‘constitutionalized,’” and that we must all live with the bland pronouncement by the Supreme Court of some ginned-up imitation of a neutral legal principle.  Somehow I think that will prove in the end to be good enough even for Eugene Robinson, who need only be patient.  It’s up to the supporters of marriage–marriage with no adjectives, as Maggie Gallagher reminds us–to see to it that Robinson’s patience is not rewarded.


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