Obama's Gay Marriage Equivocation

The marriage whose name the president dare not speak

"I favor legalizing same-sex marriages," Barack Obama told a gay newspaper while seeking his first term as an Illinois state senator in 1996, "and would fight efforts to prohibit such marriages." When Obama ran for re-election in 1998, he took the National Political Awareness Test, which among other things asked, "Do you believe that the Illinois government should recognize same-sex marriages?" His response: "Undecided." 

It took Obama only two years to learn the political value of reticence regarding touchy social issues—a concept that evidently still eludes Vice President Joe Biden, whose unguarded comments about gay marriage on Sunday called unwelcome attention to his boss's studied ambiguity on the subject. Yet a close look at Obama's statements over the years suggests his spokesman is telling the truth when he says Biden's position is essentially the same as the president's.

"I am absolutely comfortable with the fact that men marrying men, women marrying women and heterosexual men and women marrying another are entitled to the same exact rights, all the civil rights, all the civil liberties," Biden said on Meet the Press. "And quite frankly, I don't see much of a distinction beyond that."

Obama does—or at least, he is aware that many voters do, which is why he has been careful to avoid an explicit endorsement of "gay marriage" as such, to the dismay of some supporters. Instead he says homosexual and heterosexual couples should be treated equally under the law.

"The government has to treat all citizens equally," Obama said during a 2007 presidential debate. "I am a strong supporter not of a weak version of civil unions, but of a strong version, in which the rights that are conferred at the federal level to persons who are part of the same-sex union are compatible. When it comes to federal rights, the over 1,100 rights that right now are not being given to same-sex couples, I think that's unacceptable."

That position helps explain Obama's 2011 decision to stop defending the constitutionality of the statute that bars the federal government from recognizing state-licensed same-sex marriages. Announcing that decision in a letter to House Speaker John Boehner, Attorney General Eric Holder said the administration had concluded that legal classifications based on sexual orientation should be subject to "heightened scrutiny" under the equal protection guarantee implicit in the Fifth Amendment's Due Process Clause.

Although one might surmise that Obama would apply a similar analysis to state bans on same-sex marriage under the 14th Amendment's Equal Protection Clause, he has not said so explicitly. But he has opposed such bans—including not only measures aimed at abolishing existing gay marriage rights (such as California's Proposition 8) but also measures aimed at foreclosing such rights (such as North Carolina's Amendment 1).

At the same time, Obama has said (while serving in the U.S. Senate), "Personally, I do believe that marriage is between a man and a woman." Instead he has advocated "civil unions" that give gay couples "all the rights" of straight couples—except the right to call their relationship a marriage.

Here is how he explained the distinction in that 2007 debate: "We should try to disentangle what has historically been the issue of the word marriage, which has religious connotations to some people, from the civil rights that are given to couples." The people Obama had in mind include not only older swing voters but also crucial parts of his base: Seven out of 10 black voters supported Proposition 8 in 2008, as did most Latinos. Meanwhile, Obama does not want to alienate young voters, who overwhelmingly support gay marriage.  

So much for the crass political calculations underlying Obama's straddle. Believe it or not, there is also a principle here: The "sacred institution" that Mitt Romney, Obama's presumptive Republican opponent, is so keen to preserve existed long before governments started doling out marriage licenses and should not depend on the state for its continued legitimacy. 

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. Follow him on Twitter.