By Mike Dorf
As recently as 2008, no Democratic Presidential candidate other than Dennis Kucinich publicly endorsed same-sex marriage. I assumed then and continue to think that this was simple politics: Barack Obama, Hillary Clinton, John Edwards (remember him?!), Joe Biden, Chris Dodd, the Professor, and Maryann all probably would have supported same-sex marriage if they were not running for President but figured that it could be a deal-breaker with swing voters in the general election. President Obama is a particularly poignant case. As reported in Politico over two years ago, back in 1996, when Obama was merely a candidate for the Illinois State Senate, he favored "legalizing same-sex marriages." When he became a national candidate, he backslid to favoring civil unions but said that he did not favor marriage--although he frequently fudged by referring to his position as his "personal" view.
More recently--and especially after the repeal of Don't-Ask-Don't-Tell led to a national yawn--the President has said that his views are "evolving." Presumably, however, the views that are evolving are still his "personal" views, as White House Press Secretary Jay Carney indicated last week when the Administration's new position on DOMA was announced. Carney distinguished Obama's "personal views" from "the legal decision" that the Administration had made about (not) defending DOMA, thus signaling that the President hasn't yet taken the leap back to his 1996 incarnation.
This notion of the President holding "personal views" about same-sex marriage is somewhat mysterious. In what sense are a person's views about whether other people should have the legal right to marry "personal?"
We might try to distinguish "personal" views from role-based views. Suppose I ask my accountant whether I am entitled to a deduction for a donation I made to an organization that lobbies Congress. He might say something like this: "Personally, I think you ought to be able to take the deduction, but the Internal Revenue Code doesn't allow it." Here, the personal view is normative, whereas the professional view is positive. Might that be what President Obama and his spokespeople mean when they distinguish the President's "personal" views from the legal decision respecting DOMA?
We could well imagine the President saying that he personally thinks same-sex couples ought to have the right to marry, but that he can't say that they currently do have such a right under the constitutional case law. In fact, I think this is probably a correct characterization of the views President Obama actually holds: 1) Based on his 1996 response and the fact that it's unlikely he has become less favorably inclined towards same-sex marriage in the ensuing 15 years, I would imagine that his real "personal" view is that same-sex couples ought to be able to marry; yet 2) based on the existing precedents, it is an open question whether there is a right to same-sex marriage. We can be pretty confident that Justice Scalia will read those precedents (including the ones with which he disagrees) as providing no such right, and also pretty confident that Justice Ginsburg will read those precedents as granting such a right. But we can't be confident about what the ultimate outcome in the SCOTUS will be. In these circumstances, President Obama might truthfully say that he personally thinks the existing case law is best read as recognizing a right to same-sex marriage, but that these are just his personal views, and that the Supreme Court could see it differently.
The problem, however, is that President Obama has used the notion of "personal" views to draw the distinction in the opposite direction. He apparently wants people to believe that he "personally" thinks there should not be a right to same-sex marriage but that "legally" there is one. This is a conceptual possibility, of course. Presumably President G.W. Bush personally thought that there should not be a right to abortion but that legally there was one. So we can make semantic sense of the claim that a President personally thinks there should not be a right even as he thinks there is one legally. But the particular assemblage of views that President Obama would have us believe he holds makes very little sense.
Given that people in fact do differ on whether the existing precedents entail a right to same-sex marriage, it's just not plausible that someone would think that there ought not to be a right to same-sex marriage AND nonetheless that the only reasonable reading of the open-ended precedents is that they in fact do recognize a right to same-sex marriage. Under the President's "legal" analysis, his own "personal" view is unreasonable!
Accordingly, I am left to conclude that the whole notion of President Obama holding anti-same-sex-marriage "personal" views was always political doublespeak. As this fact becomes increasingly apparent, I suspect that his personal views will evolve back to where they were in 1996, and where--but for the perceived imperatives of politics--they belonged all along.