Is Romney Vulnerable on Gay Marriage?

Yesterday, the day after President Obama finally endorsed gay marriage, his campaign released a video faulting his presumptive Republican opponent, Mitt Romney, for not doing so as well. The contrast the video draws, based mainly on public statements by Obama and Romney, is mostly fair but misleading in one important respect: It suggests that Romney, unlike Obama's Republican predecessor, George W. Bush, opposes even "civil unions" for same-sex couples. As I noted yesterday, that is not true: Romney is on record as supporting "domestic partnerships" that include "the potential for health benefits and rights of survivorship." What else they might include is not clear. The video claims Romney opposes "health insurance for your partner and kids," which is not accurate unless Romney has changed his position since he was running for governor of Massachusetts in 2002. It also says he would prevent gay couples from "adopting children together" and making "emergency medical decisions" for each other, but it does not provide any quotes to back up those claims. 

The video does show Romney saying, after Obama's announcement on Wednesday, "I don't favor civil unions if they're identical to marriage other than by name" (which is what Obama supported until two days ago). But there's a wide range of possibilities between that option and no legal recognition at all. Romney should be pressed to say where on that range he falls, because that question highlights the practical difficulties that gay couples face every day and the basic unfairness of their unequal legal treatment. Romney does not want to talk about gay marriage, precisely because it puts him in the awkward position of explaining what alternatives he favors. But if you are inclined to question the issue's relevance in a presidential race, since marriage law is traditionally handled by the states, note that Romney himself has declared this a federal issue by insisting on one nationally imposed definition of marriage (a point the video also highlights).

Obama, by contrast, says the issue should be resolved state by state. That means he is not, for the time being at least, making a constitutional argument against state bans on gay marriage, although he has opposed them on policy grounds. On the face of it, his federalist position is consistent with his opposition to the Defense of Marriage Act (DOMA), which bars the federal government from recognizing state-certified gay marriages. But his argument against the constitutionality of that provision is based on the equal protection guarantee implicit in the Fifth Amendment's Due Process Clause, not on the 10th Amendment. As I said in my column this week, that position suggests Obama would be receptive to an equal protection argument (based on the 14th Amendment) against state laws prohibiting marriage between people of the same sex, along the lines of the challenge that led the Supreme Court to overturn state bans on interracial marriage. That is exactly the analogy drawn by opponents of California's Proposition 8 in a case that is heading for the Court (along with a challenge to DOMA that involves both equal protection and 10th Amendment arguments). But as long as Obama says states should be free to define marriage as they see fit, his video's charge that "Romney would even let states roll back federal rights for couples' hospital visits" (because he says "states are able to make decisions with regard to domestic partnership benefits") rings a bit hollow.

At the same time, Romney is the one who wants to federalize the definition of marriage via a constitutional amendment defining it as the union of one man and one woman, a proposal Obama has always opposed. And since Romney says he opposes the "strong version" of civil unions that Obama used to advocate, which is essentially civil marriage by another name, it is fair to ask him whether the amendment he imagines also would address that possibility. If so, the federal government would necessarily become involved in dictating the details of domestic partnerships, even though Romney says each state should be able to decide those for itself. Since most Americans favor either gay marriage or something similar to it (though how similar is up for debate), Romney will have a hard time answering such questions without alienating people whose support he needs to win the general election. But if he goes too far in countering the Obama campaign's portrayal of him as insensitive to the injustices inflicted on gay couples, he risks turning off the social conservatives he has been courting until now. I am looking forward to seeing him squirm.