Monday, February 28, 2011

What is a "Personal" View on a Matter of Public Policy?

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.


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Doug said...

Personal view --> a view that he will not (currently) push as president.

Yes, double-speak.

I might though offer another example where it isn't. I believe gambling is wrong and would be personally happy if it were outlawed. At the same time, I don't think that if I were in office I would move to outlaw it as outlawing it is obviously taking away the right of someone to do what they want (even if it causes social problems) so I don't think I would impose (by law) that personal view.

I'm not sure this is too rational but then again, who said I (or any citizen or politician) had to hold exclusively rational views?

Unknown said...

On the main point of your post, I think Doug has it right. One of the obligations of a public official is to NOT let his/her personal religious views determine their public policy positions. A politician who is a deeply observant Orthodox Jew might say, "I think marriage between a Jew and a Gentile is against God's law and I don't personally regard such marriages as valid, but as a public official I agree that it would be unconstitutional (as well as wrong in other ways) for the state to ban such marriages."

Incidentally, if the accountant gave that advice about lobbying, you should get another accountant. Charities are permitted to lobby to a limited but non-trivial degree, and a competent accountant would explain the rules about how much is permitted, and even how you might be able to find out if the organization you wanted to contribute to was in compliance with the rules. A better analogy would, I think, go the other way -- the accountant might say, "Personally, I think charities should not get messed up in politics and certainly not in lobbying, but the law does permit a certain amount of that."

Joe said...

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.

He has stated that his moral beliefs hold that "marriage" includes a relationship between a man and a woman. Some people, such as some Roman Catholics, hold that you can only morally "divorce" in a limited number of cases. In both cases, what legally exists can be different. Not seeing the confusion.

Anyway, Section Three of DOMA regards benefits of those already married. Heightened scrutiny has application beyond that, but the specific matter at hand is more limited.

This makes the two sides even less confusion. Whatever his stance on what "marriage" means, if a state recognizes something as marriage, he is saying constitutionally in this case, equal benefits should apply. Marriage at 16 over 18 might be a bad idea, but the feds let states decide how to define it, not singling out states that don't. If so, singling out SSM is unconstitutional.

Crispian said...

Good article. Obama's insincerity is what makes him still a mystery to many people.

It feeds the worst theories about him on the right, disenchants the middle, and keeps the left enraptured. I suspect his views will "evolve" in time for the next election. Or perhaps he'll play it safe and declare his evolution shortly after his possible re-election.

All politicians avoid certain issues, try to frame them in a particular way, or falsely claim to hold the popular view. Some would argue Obama is just particularly brilliant at doing so with his parsing of words. I find Obama's method as clever as a parlour game.

On every important issue, Obama's representations are like Clinton's rebuttal that it depends on what the definition of "is" is. Whether calling ACA penalty a "tax," saying no "reasonable" defense of DOMA can be given, or expressing a "personal" view of gay marriage, Americans are treated like children who are intended not to understand the double meaning of an adult's words.

If Obama wishes to lie about his position, he should at least do that forthrightly. I really don't see the merit in being able to later argue, 'no, you weren't smart enough to understand, this is what I REALLY meant.'

Paul Scott said...

But lies are the only thing that works. That is why there is so much code speak in politics on the right. the Dems do it too, just differently (and, frankly, less effectively).

It is an unfair complaint that a politician is a liar when every single politician who has told the "hard truth" just gets crushed in the elections. The same is true of those that have attempted nuanced, complex answers - which again is just another form of being truthful when asked questions for which there is no simple sound-bite answer.

If you don't want politicians to lie than stop beating up every single one that tells the truth.

Crispian said...


You are absolutely wrong that "One of the obligations of a public official is to NOT let his/her personal religious views determine their public policy positions."

The Constitution certainly prevents the government from making laws that violate the 'separation of church and state' but it does not restrict the source of an elected official's public policy position. Imagine if many of those who fought for equality of blacks did so for religious reasons (obviously there are good secular reasons). And imagine if the Civil Rights Acts were passed by those motivated primarily by religious beliefs that God created all people and that Jesus preached tolerance. And let's imagine that Congress included a statement to that effect in the bills. Would the law be improper? You might not like it if elected officials ground their views in religion, but they are perfectly entitled to do so.

Human beings get their viewpoints and morals from many sources. Many elected officials do base their opposition to gay marriage in religion. But like my example about civil rights, this wouldn't make it improper. If one believes his religion is the truth (not just a thing he does on Sunday) one would expect him to adopt its moral teachings. And we do expect our leaders to make laws in accordance with certain morals. A religious person need not forsake his sense of morality simply because it is religious.

If we don't like the set of morals espoused by a candidate, we need not elect him. There is no further obligation.

Crispian said...


Precedent for my position:

McGowan v. Maryland, 366 U.S. 420 (1961)

Joe said...

Not seeing "Obama's insincerity."

Not seeing how it is present in every important issue. Obama is not the only one calling the ACA a "tax." Is Jack Balkin, e.g., treating the public like children?

Many, in and outside the legal profession, do not think it constitutionally "reasonable" to discriminate by sexual orientation and gender. So said many judges and a handful of state courts. Are they treated us like "children" too?

Lincoln was personally against slavery but thought the Constitution protected it. His position on the subject "evolved" over time. Did he treat society like children, too?

Clinton testified and non-children realize that the truth in such cases can be technical things. Lawyers, not only children, realize what he was doing.

Not seeing where Obama is "lying" here. He is making some strategic moves affected by politics. This is what every POTUS does on many subjects. Singling out him, like some single out him when many POTUS' refused to defend something like this, is a bit childish.

tjchiang said...

I think there is a meaning of "personal view" that you are missing. It is that he is speaking about an issue that is beyond his jurisdiction as a public official. For example, Obama offered his personal view on whether it was stupid for a Cambridge police officer to arrest a Harvard professor.

The implication of this interpretation of "personal view" would be that Obama was offering himself as a federalism nut that believed the federal government, or at least the federal executive, had nothing to say about the issue of same-sex marriage.

Crispian said...


I think you misunderstand both Professor Dorf's point and mine.

Your distinction of moral v legal was already addressed by Professor Dorf. Start reading from the third to last paragraph. You don't see the confusion because you missed Professor Dorf's point.

You similarly misread my point. The problem is not that Obama calls the ACA penalty a "tax." See the interview with Stephanopoulos in which Obama bristled and scoffed at the notion it could ever be considered a "tax" but then argued in court that it is a tax.

Next you mix up the use of the word "reasonable." There is an everyday meaning and a legal meaning. I don't mean to play the lawyer card in an internet debate but "constitutionally 'reasonable'" really doesn't make any sense. Was slavery "constitutionally 'reasonable'"? It was certainly permitted under the Constitution.

My point about treating us like children is not about Obama holding a particular view. It is about trying to have it both ways with fine parsing of words and no apparent benefit. (Go back and see my differentiation of normal political misleading with what Obama does so I don't have to make it again here).

Now, let us go to your example:
"Lincoln was personally against slavery but thought the Constitution protected it."

Lincoln thought the Constitution protected slavery? Granted my education in American history is limited to high school and Wikipedia but that strikes me as an odd claim. From wikipedia:
"In 1837, as a member of the Illinois General Assembly, Lincoln issued a written protest of its passage of a resolution stating that slavery could not be abolished in Washington, D.C."

At the age of 28 or so, Lincoln didn't appear to think the Constitution gave that much protection to the institution of slavery. Throughout his life he appears to have spoken out against slavery. His legal and personal views appeared to have been in sync.

But for the sake of argument, let's say Lincoln thought the Constitution protected slavery. And what did he do? He fought to turn his personal view into the Constitutional view.

In Obama's case, as layed out by professor Dorf, Obama could be saying that the Constitution requires equality of same-sex unions but he personally disagrees that they should be legal. To hold this view, Obama must believe there is only one possible - one reasonable - way of reading precedent. It is difficult to believe that Obama is that dumb. And if he believes the Constitution demands marriage equality, he is failing in his duty to uphold the Constitution. That he is doing so out of (apparently) half-hearted clinging to moral beliefs doesn't make it better. I agree with Professor Dorf that this is not a plausible explanation for Obama's representations.

Professor Chiang raises a possible interpretation. The problem is that Obama once expressed support for same-sex unions. Was that his personal view or his policy view? If it is above his pay grade, he could easily say so. To believe that Obama is a federalism nut is a bit far-fetched at this point.

Unknown said...

Crispian -- You're correct that people's religious views will inevitably shape their policy views, just as do lots of other factors -- age, life experience, education, etc. My point was that a public official has a responsibility to try to distinguish matters of personal opinion, including that based on religion, from matters of law or policy. In any case, an official who does so is not acting improperly.

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