Thursday, May 10, 2012


-- Posted by Neil H. Buchanan

I have deliberately not yet read the many editorials and commentary discussing President Obama's endorsement of gay marriage . I have seen a clip of his interview, and I have read the first part of the news article in today's New York Times. I respect the opinions of the editorial board of the Times, as well as others who have surely weighed in by now. But I did not want my reaction to be influenced by others' reactions. As many readers of Dorf on Law know, this issue is personal for me.
A little more than ten months ago, after the New York legislature passed (and Governor Andrew Cuomo signed) a law legalizing gay marriage in the State of New York, both Professor Dorf and I wrote celebratory posts on this blog. (Dorf here, Buchanan here) In the final paragraph, I wrote: "The tide of history is clear. Even Obama's 'evolution' will be complete sometime soon. There will be more fits and starts, but there is no going back." And here we are. My home state of Maryland has joined the growing list of states that have legalized gay marriage, and now the President is finally on board.

After learning about Obama's announcement, my first thoughts were about political consequences and tactics. Although I might share a few thoughts along those lines in future posts, I think that it is important today to set aside politics, and simply to marvel at what has happened. The pace of change on gay rights issues has been nothing short of astonishing. This is a moment of genuine historic importance. No matter the path to this moment, the President of the United States is now back on the right side of history.

Although the comment that I quoted above from my June 2011 post was intended to be a dig at Obama, I have to say that I completely understand the notion of "evolving" on this issue. Surely, everyone -- even the most committed gay rights activists -- has had some moments of ambivalence about gay marriage. Many people must have, at one point or another, questioned whether civil unions were really good enough. A letter in the NYT a few days ago repeated the "defining down" argument, in which government would simply stop calling any licensed relationship a "marriage." My first thought was, "Man, that is so five years ago!" Still, at some point, I found that argument appealing. Until I evolved.

We have all probably suspected that the President had already evolved, and that he was simply not ready to take the risk of publicly supporting gay marriage. There is surely much to that suspicion. Even so, given that everyone takes their own time to reach the right outcome, it would be churlish to condemn someone for not being in the vanguard. This was a huge moment, and the consequences of Obama's decision to endorse gay marriage were certainly more weighty than for almost anyone else. I was exasperated and impatient, but I honestly thought that I would be waiting for the President for many more years. This is a wonderful surprise.

That is not to say that there was not damage from waiting. Every day that people are denied their basic human rights, people are harmed. I am certain that, if my brother Kevin and his partner Gabriel had not been taken away from us by the scourge of AIDS, they would be married today. Had Gabriel and Kevin been of opposite sexes, they could have even chosen to marry in the shadow of impending death, which would have been deeply meaningful to them and to the people who loved them. Straight couples facing tragedy have always been allowed to do that. That Kevin and Gabriel could not is a harm that can never be rectified.

Past errors, however, have meaning if they lead to enlightened change. We honor those who could not enjoy these civil rights breakthroughs by recognizing how much they lost while waiting for the world to wake up. President Obama's evolution is complete. Much of the world is still lagging. But there is no going back.


egarber said...

In a lot of ways, I think Obama’s evolution mimics society’s growing ability to learn from history.

For a little while, he and many others seemed to think that civil unions were the perfect sweet spot. After all, if implemented properly, that framework means gay and straight couples have the same practical rights.

But something never sat right about that. The essence of a “right” is more than mere practical effect; there’s something much more transcendent in play, relating to notions of parity and stature.

I think that uneasiness is a reflection of how the lessons of Plessy are engrained in our culture. To me, civil unions are nothing more than a modern day version of Plessy in the marriage context. And my guess is that when the president was alone with his thoughts, he just couldn’t get behind another separate but (supposedly) equal paradigm. Such a model only works if there’s something close to a compelling reason for its existence. It’s woefully obvious that there isn’t one.

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