Wednesday, June 29, 2011

Why Do LGBT Activists Want Obama to Say He Supports Same-Sex Marriage

Robin McGehee's essay in Huffington Post criticizes President Obama for declining to support same-sex marriage. A New York Times article also reports that several LGBT advocates are angry that the president refuses to support same-sex marriage.

Why should Obama, however, support this particular issue? McGehee says that Obama should support same-sex marriage for two reasons: 1. in order to lead and 2. to fulfill a campaign promise:
Presidents lead. They take principled stands, based on their values and convictions, and then they work to create a better world. And this president promised his LGBT supporters on the campaign trail that he would be their "fierce advocate." We took him at his word.

Sadly, he isn't living up to his promises....
This argument is not entirely true. Obama certainly promised to be a "fierce advocate" for LGBT rights. And when he fell short of that promise in the past, he received a great deal of criticism (including from this blog).

Yet, Obama never promised to support same-sex marriage. Instead, he has always stated his opposition to it. During the Democratic primaries, each of the leading Democratic contenders -- including Hillary Clinton and Obama -- opposed same-sex marriage. Accordingly, the fact that Obama refuses to do so now should not surprise people who actually listened during his campaign.

Also, it is unclear what LGBT rights movements would gain if Obama suddenly shifted course and supported same-sex marriage. A sudden change in position might look contrived. Also, it would not translate into any immediate policy gains. Marital law is still subject to state control. Federal law could overturn state law on this issue, but this would require a ruling by the Supreme Court. Many LGBT legal advocates, however, do not want the Supreme Court involved with such a decision because it could backfire. No one is exactly sure how Justice Kennedy, the swing vote, will swing.

McGehee also notes that several conservatives, including Dick Cheney and Laura Bush, have recently expressed support for same-sex marriage. There is one major distinction between Obama, Bush and Cheney: Only Obama is seeking national office. Many former politicians have embraced same-sex marriage, now that they no longer depend upon voters for their professional lives. Thus, the comparison falls quite short. Yes -- this position acknowledges that Obama makes political calculations, but all politicians do this. Rather than seeing Obama as some fierce messianic figure descending from above to unshackle the downtrodden of the Earth, savvy voters must view him as a politician seeking votes and reelection. Clearly, Obama has decided that opposing same-sex marriage will not cost him too many votes.

Finally, LGBT groups could probably get more mileage if they pressed Obama on issues on which he has direct influence. Marriage is regulated by state law. Federal law takes marriage into account in many entitlement and other programs, but Obama has stopped defending DOMA. Federal constitutional law can trump any contrary state law, but the Supreme Court has not held that denying same-sex marriage violates the Constitution. Although the President could make such a declaration, he could not enjoin the operation of contrary state law. Furthermore, his opinion would not necessarily cause any particular judge to rule that same-sex marriage prohibitions violate the Constitution. In other words, the gains from pushing Obama on this issue seem speculative at best.

LGBT groups, however, have engaged in highly effective advocacy by pushing Obama on issues over which he has control. Marital policy is not one of those concerns. ENDA, a proposed statute that would ban employment discrimination on the basis of sexual orientation and gender identity, however, could use presidential support. Rather than pushing Obama to move on an issue in a way that no other serious Democratic contender has done, perhaps LGBT groups would gain a lot more if they pushed Obama and Congress on ENDA.

If Congress passed ENDA, LGBT individuals in all states would receive formal protection against employment discrimination. LGBT folks who are more economically vulnerable would likely benefit more from the passage of ENDA than wealthier gays and lesbians, whose wealth provides some cushion against discrimination -- and allows them to relocate to gay friendly jurisdictions.

The marriage debate raises the issue of class stratification within LGBT communities. Symbolism does very little for people struggling financially. In many ways, however, the arguments for same-sex marriage have a lot to do with symbolic, rather than material, change. ENDA on the other hand would provide at least formal protection to LGBT people with respect to their livelihoods. It is unclear why marital rights should have so much more prominence than basic protections for LGBT workers.

UPDATES:

A version of this essay also appears on the Huffington Post.

The Wall Street Journal reports that at least two major New York companies have said they will now withhold benefits from same-sex domestic partners; now these couples must marry in order to obtain benefits.

Federal Appeals Court Upholds Health Care Reform Act

Today, a federal court of appeals upheld the health care reform legislation. The plaintiffs argued that Congress lacked the authority to pass the legislation and, specifically, to penalize individuals for not purchasing health insurance. A majority of the appeals panel held that the Commerce Clause gave Congress the power to enact the legislation. Although one judge dissented, none of the judges seem bothered by the "action"/"inaction" distinction that opponent of the legislation have asserted. None of the judges agreed that the penalty was a tax.

Opponents of the law have argued that while Congress can regulate economic "activity" under its Commerce Clause authority, it cannot regulate "inactivity" -- or the status of being uninsured. The court ruled that the penalty allows Congress to regulate activities including self-insurance, which drives up the price of medical services and insurance in the interstate markets. I have made a similar argument on this blog (see, e.g., here). Ruthann Robson at Constitutional Law Prof Blog provides a nice summary of the ruling.

Friday, June 17, 2011

Sexual Hypocrisy and Democratic Weakness: Just Another Day in the USA

So Anthony Weiner has resigned. Lacking anything better over which to obsess, the rapidly declining US media created a faux scandal that forced Weiner to resign. The story is very brief. The former House member sent an electronic picture of himself wearing briefs to a woman. Rather than creating a fictional email and Twitter account, Weiner sent the pictures using his official email address. He also used various accounts bearing his name in order to engage in sexual banter and to flirt with several women. The outrage surrounding this issue forced Weiner to resign. Before he resigned, several Democrats – including President Obama – told Weiner that he should quit. This decision should upset anyone who believes in personal liberty.

Weiner’s conduct was reckless for a politician. He risked getting caught and subjected to a political scandal. This observation, however, does not indict the underlying behavior itself. It only means that he was not politically savvy. With respect to Weiner’ conduct, however, there are no allegations (at least credible ones) that he violated any criminal laws, committed a tort, or violated any statutory rights held by any of the women with whom he communicated. In fact, it seems that several of them willingly engaged in sexual banter with Weiner. In other words, Weiner resigned because he engaged in noncriminal sexual conduct that appears to have been consensual or otherwise nonabusive.

Puritanical Values

The United States has a long and tired history of suppressing consensual sexual conduct. Historically, white women have been viewed as “sexually pure”; they should not engage in or be exposed to sex outside of marriage. Weiner crossed this socially constructed boundary. Dignified male politicians should act like “gentleman.” Their sex should remain private and restrained. Weiner crossed this boundary as well. And teenagers, LGBT persons and persons of color have all been stigmatized due to sexual conduct and stereotypes. The reaction to Weiner implicates this long puritanical history that seeks to strip away sexuality in very racial and gendered terms.

Despite the ways in which the reaction to Weiner implicates a troubling slice of US history, many self-proclaimed liberal critics refuse to defend Weiner. Instead, they continually make the observation that his behavior was stupid, that he was asking to get caught. Not too long ago, people routinely made this same argument when gays and lesbians who came out of the closet experienced employment discrimination. Although Weiner’s situation is not completely analogous to the struggle for LGBT rights, the reaction to his conduct sounds eerily familiar. Rather than focusing on his right to engage in consensual sexual conduct, many people are simply arguing that he should not have done so. But this does not explain why the country treats sexual expression as immoral.

Hypocritical Values

The United States ranks among the world’s largest markets for pornography and prostitution. Nevertheless, it retains relatively puritanical views about sex. Until recently, federal law shielded the supposedly strong and heroic members of the armed forces from the presumed threat of homosexuality. States have rushed to ban same-sex marriage. A significant portion of the country opposes teaching teenagers about birth control – even though teenage pregnancy remains a serious problem.

Down in the Bible Belt, residents of Dallas, Texas often joke that the city has more churches and strip joints than any city in the nation. In Texas, however, state law bans the sale of “sex toys,” unless they are necessary for medical purposes. Texas treats sex toys as obscenity – unless you need them for medical purposes.

These are just a few examples of the hypocritical stance towards sexuality in the US. Weiner's resignation brings that hypocritical history to the surface.

Weakness

Rather than treating Weiner’s conduct as politically unwise – but generally harmless – Democrats rushed to kick him out of office. Predictably, the party caved when it could have resisted a silly scandal.

Ironically, the weak party has now kicked out one of its most passionate and fearless members. But this is typical of Democrats -- very typical and disappointing. Several other politicians on both sides of the aisle have suffered political scandal, but they kept fighting (remember Clinton). Today, the Democrats cannot fight at all. They have the spines of slugs.
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