Let’s suppose that President Obama has long believed that same-sex marriage is a civil right. What should we make, in that case, of his recent announcement that he believes gays should be able to marry? In my view, the President, no matter how longstanding his opinion, was right, or at least justified, to wait until now to announce it. And further, the Supreme Court ought to wait just a bit longer, if it can, before enshrining that understanding in the constitutional pantheon, as much as it belongs to be there.
First, I should emphasize that it may well be that Obama has only recently come to the personal conclusion that the law ought to recognize such marriages. He may even believe now that there is no federal constitutional right that would trump the many state statutes and constitutional provisions to the contrary. I doubt it, but I don’t mean to imply in what follows that his true, personal beliefs are other than how he has described them.
Instead, I want to emphasize the obligations and considerations in taking a position as a representative. There is and should be a difference between an individual’s wants, even concerning the law itself, and his or her wants for the institution he or she represents. In short, any representative must understand the importance of roles.
As a relatively unimportant assistant professor, I can express wants for my law school or university that I would not and should not express were I the president of the university. That’s not at all because a president must act in craven, political ways. Rather, my role as an individual faculty member includes an obligation to voice my opinions, adding to the menu of options offered up by others that will inform but not determine the ultimate decisions. As president, this option-producing function is not what’s most important. The university president is both a decisionmaker and a representative. He or she must indeed exercise independent judgment, but for the president to say, in this role, that something should happen or should not happen is a statement about the institution’s intentions, not simply his or her own.
When the President of the United States announces what he believes the law requires, he states something much more than a personal view. He has an obligation to represent the People and in doing so to announce not his own opinions on the controversies of the day, but his view of the proper role that the United State should play in understanding and resolving them. Balancing the need to be a good agent of the People (and not only those in your political base) while also being a good leader is the most difficult act that any scrupulous and well-meaning president must undertake. One must simultaneously give voice to those you lead and actually lead them.
“Do you believe in gay marriage?” becomes, when posed to the President, “How does the Executive Branch view the question of gay marriage?” These questions are not hermetically isolated, but they are nonetheless different questions.
The people of the United States have radically changed their mix of views on the sources of, morality of, and acceptability of homosexuality. However one dates this change, from early activism to the AIDS crisis (Philadelphia) is under-appreciated in this regard) to hum-drum, contemporary sit-coms, the normality of homosexuality and the humanity of gays have now been fully revealed to all who participate in popular culture. This has had the effect of encouraging more people to come out of the closet, which has led to more people having friends and family they know are gay, which only reinforces personal perceptions that gays are, in fact, ordinary people like the rest of us.
It’s a virtuous cycle and the engine of the inalterable trajectory of this issue: People who change their minds are changing it in favor of gay marriage. The population most hostile to homosexuality is dying off. The result of these fundamentals has made the ultimate outcome of this “debate” clear for a long time now, and the trend will only accelerate as people rush to get on the right side of history.
And so, the question has been at what point should the President announce his support for gay marriage. Last year, the White House decided not to defend the section of the creepily-titled Defense of Marriage Act that prohibits federal recognition of same-sex marriages performed in states that permit it. That was a statement that the federal government, if the Executive has its way, will bow to the determinations of states on either side of the issue in determining federal benefits. It did not state that the Executive had taken a position on how a state should resolve that question.
With his recent personal “affirm[ation],” the President has expressed that he, in his role, would like to see gay marriage approved, while explicitly suggesting that the question should, for now, be left to the states. This affirmation is, effectively, suggesting that the states should determine not whether but how quickly gay marriage is legalized throughout the nation. And, incidentally, he suggests they should kind of hurry the hell up, lest your state be one of the stragglers that is ultimately cleaned up by federal fiat - Loving v. Virginia style.
The same is true of Supreme Court justices as is true of the President. The questions they resolve are not identical to the ultimate ones: what does the Constitution require? Rather, a justice must decide what the Supreme Court should do when hit with the question of a law’s legality. Because the Constitution rarely provides clear answers to such questions, it is all the more crucial that a justice understand what role the Court should play and how the Constitution is addressed to that role.
Viewing the Court in this way makes it much clearer why the Court most typically ratifies rather than forges social movements. The “under God” part of the pledge — a red scare-era addition meant to distinguish us from godless communists — seems quite obviously an unconstitutional act of Congress. But that does not mean that the Court had an obligation in the Newdow case to decide as such. While it might have been illegitimate to decide, substantively, that Congress had no sectarian purpose in adding the reference to the Abrahamic deity, punting on standing grounds was probably the better way to permit our society to work out the meaning of the Establishment Clause, that is, the proper role of religious reference and motivations in the public sector.
The choice the Court faces in the gay marriage cases may be more difficult. It would be better if marriage equality won out democratically — if we all owned the decision to be more inclusive. The Court would still be needed to pick up the pieces in a few years, compelling the handful of recalcitrant states as it did in Loving v. Virginia. But its hand may be forced by litigation, such as that in the Ninth Circuit pursued by Ted Olson and David Boies (and countless others, like the rather awesome San Francisco city attorneys).
Perhaps the Court will find a way to let these victories stand while giving the states another couple of years. Honestly, I think that’s all it’s going to take.
When Obama suggests that the marriage question should be left to the states but that he believes gay marriage should be legal, he has made a profound move. The statement more or less consolidates some of the administration’s existing positions and provides signals concerning the future. It tells us that he believes the role of the federal government should be to remove any federal barriers to marriage equality and that it should encourage states to do the same. It also tells us that the day is coming when the federal government, through the Court, will ratify the changes in public acceptance of gay marriage that are not only ongoing but accelerating. Making such a statement is a weighty responsibility, and the President did nothing wrong if he delayed, even if for a long while, before doing so.