Both Left and Right can find aspects of President Obama’s policy on marriage to dislike. Their dissatisfaction is a tribute to his politically motivated incoherence, not to his moderation.
Most contemporary liberals believe passionately in what they call “gay rights” (by which they do not mean the right of homosexuals to own property, vote, or bear arms). President Obama believes, but not passionately, and he will not advance gay causes unless doing so benefits him. He will not take political risks for them. So while he says that he favors gays in the military and opposes the Defense of Marriage Act, he will not push to change either policy. He refuses even to endorse same-sex marriage. The conventional wisdom is that the advocates of same-sex marriage have the future on their side. President Obama appears to believe that this future is a long way off.
Now President Obama has brought on the wrath of liberal gay organizations by affirming the constitutionality of the Defense of Marriage Act in court. That act, passed by a bipartisan majority and signed into law by President Clinton in 1996, treats marriage as the union of a man and a woman for purposes of federal law and protects states from having to recognize same-sex marriages formed in other jurisdictions.
The gay organizations claim that the Justice Department’s brief defending the law is especially hurtful because it compares same-sex unions to incestuous ones. Seeing this phony charge made, for once, against a liberal may inspire a bit of schadenfreude for conservatives. But phony it is. What the brief says is that courts have ruled that states may refuse to recognize marriages blessed by other states when those marriages run afoul of their own policies. It cites as an example a case in which New Mexico allowed first cousins to marry but Arizona refused to recognize the marriage. The brief expresses no view on whether incestuous unions and same-sex ones occupy the same moral plane. It makes a legal point, and an unassailable one.
Having done the right thing, Obama is apologetic. Earlier this week he said that the law is “discriminatory” and “interferes with states’ rights.” But the law is no more discriminatory than Obama’s own stated position against same-sex marriage. Obama’s comment about states’ rights assumes that states (and usually state courts) should have the right to determine the marriage policies of the federal government and of other states. The law protects states’ rights to determine their own marriage policies. It ought to stay on the books. President Obama has our gratitude for doing his insincere part to ensure that it does.