When Senator Rob Portman of Ohio endorsed same-sex marriage, he joined a very small club — or, actually, two of them. He is the first Republican senator to have taken this position. He is also one of a small number of people who support same-sex marriage as a public policy but do not want the Supreme Court to require all states to adopt that policy.
More typically, politicians who have had a change of heart on marriage, or at least changed their public positions on it, have leaped, sometimes in one bound, to the conclusion that the policy they used to support was not only mistaken but unconstitutional. President Clinton signed the Defense of Marriage Act in 1996 and ran radio ads touting the fact in his reelection campaign. Now he says the Supreme Court should strike down an important portion of the law. (Maybe next year he’ll call for the Court to get rid of the rest of it.)
In an op-ed attempting to justify his change of position, Clinton noted that when he signed the law he had urged that it not be used as an “excuse for discrimination” against same-sex couples. “I know now,” he added, that “the law is itself discriminatory.” He also borrowed a claim from a group of former senators who voted for the act but this year submitted a brief to the Court urging its nullification. They said that many supporters of the bill had favored it only to head off calls for a constitutional amendment codifying the definition of marriage as the union of a man and a woman, “which would have ended the debate for a generation or more.”
As many gay-rights activists who fought the law’s passage at the time have noted, nobody was talking about a constitutional amendment back then. Clinton is being characteristically shifty. He doesn’t quite say that he himself favored the law because he feared an amendment. He just leaves that impression. If that is right, though, it makes a hash of his simultaneous claim to have been unaware that denying marriage to same-sex couples is discriminatory.
Clinton, at least, came out for same-sex marriage a few years before urging the Supreme Court to strike down the Defense of Marriage Act. Jon Huntsman, the former governor of Utah and candidate for the Republican presidential nomination, declared that he no longer opposes same-sex marriage the same month he urged the Court to declare same-sex marriage a constitutional right. He wanted the Court, in other words, to strike down as unconstitutional the position he had taken until a few minutes earlier (and helped pass into law in Utah).
President Obama, in his shifting positions on marriage, has out-Clintoned Clinton. He supported same-sex marriage in a candidate questionnaire in 1996. Then he said he opposed it for religious reasons but supported civil unions and wanted to repeal the Defense of Marriage Act. He continued to say he opposed it while also, in 2008, opposing the California ballot initiative to put the traditional definition of marriage, which he claimed to support, into the state constitution. (He said it would be discriminatory to do that.) Then his administration decided that the Defense of Marriage Act was unconstitutional while Obama still opposed same-sex marriage. Then his spokesman said that his position was still “evolving.”
With great fanfare, Obama announced in May 2012 that he had finished evolving and now favored same-sex marriage — but that, like Portman today, he believed the policy should be set state by state. At the end of February, the administration said that it would urge the Supreme Court to strike down the traditional-marriage law California voters put into their state constitution in 2008. Its current position is that because California recognized civil unions it has no constitutionally permissible rationale for refusing to recognize same-sex marriages. States that offered no official recognition at all to same-sex relationships are in the clear, according to the Obama administration.
Well, in the clear for now. At the moment, the administration is arguing that its position until May 2012 — civil unions yes, same-sex marriage no — was unconstitutional. The next step in its evolution will be to explain that no state may refuse to recognize same-sex marriages and that its position since May 2012 has also been unconstitutional.
The acrobatics by Clinton and Obama can be explained by political opportunism: There is no reason to think any of their positions has been sincere (except, perhaps, for Obama’s first one). What about the Huntsmans of the world, though? Or to put it another way, why are there so few Portmans, who support same-sex marriage without believing that every state must be compelled to agree?