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.

NEXT: Steven Greenhut on How the Kelly Thomas Beating Sparked a Citizen Revolt

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  1. if you are inclined to question the issue’s relevance in a presidential race

    Everyone should be so inclined.

  2. Romney’s mostly vulnerable for being about as much of a flip-flopping fuck as Our Current President(tm).

    He’s also vulnerable to the stupid that consumes most of the citizens of the USofA – although that could elect him just as much as it could not elect him, so…tough call. Cuts both ways.

    1. President DreamyPants doesn’t flip-flop, he evolves.

      1. “he evolves.”
        In 180* turns. That’s not flip-flopping! It’s flop-flipping.

          1. I rather thought it was more fop fapping.

            1. dammit, go learn ruby already. perl is dead.

              1. There’s also fap-slop, but that’s a topic I’d rather not address.

  3. The ability to define marriage is NOT one of the enumerated powers of Congress, and the issue is irrelevant to the Presidential election. This whole thing is about the Dems trying to distract people from the way they have totally cocked up the economy. Believe it or not, the legal effect of marriage varies state by state (property laws, laws of dower and intestate succesion, etc. . . .). Obama is actually right that it should be left to the states, but if he is re-elected, you can be sure that he will try to federalize it in the name of civil rights.

    1. the states themselves made marrage a federal issue as recently as the 50’s when SCOTUS ruled against state prohibition of inter-racial marrage.

    2. At what point is it legitimate for government to intercede in a private contract?

      When there is conflict between the two parties. When the parties are in agreement there is no need for government.

      Who invites the government in when it is not needed?


      How is this relevant? IMHO, no unnecessary action of the state governments could pass a strict scrutiny under section 1 of the fourteenth amendment:

      All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      Yes, it is a radical interpretation, but the amendment was put in place by radicals who due to the circumstances of the time were put into power. Only later was its full effect diminished in practice and customary discrimination was retained. This is why libertarians are not conservatives, and we should not be confused with one another.

    3. How does DOMA interact with the federal tax return. Can a couple who’s marriage is legal in a particular state not file jointly?

      If they can’t, I’d say there is some relevance

  4. whatever Romney’s stance on gay marriage, it is the president’s craven display of opportunism that should be held up to public scrutiny, along with that ridiculous attempt at a Romney hit piece in the WaPo. The sad thing is the gullibility of the Obamabots and their inability to see the contempt in which their master holds them.

  5. “I’ll do nothing, but I think good thoughts while doing nothing.”

    You have to be an idiot to vote based on that.

  6. I think the only thing that makes Romney vulnerable on this issue is that he signed that stupid pledge vowing to fight for a national marriage amendment. Way to go Mitt, you just intractably linked yourself to socon culture war bullshit.

  7. I’m shocked, SHOCKED, to discover that Obama is defending gay marriage purely for political reasons.

    1. “Defending” usually involves doing something. Anything. At all.

      1. What are you talking about? Lip service is the most valuable service.

        1. In the context you’re thinking about, sure. Not so much freeing the gays or whatever Obama claims to be not doing.

          1. Hey, just because we’re talking about the gays and their sweaty, hairy, delicious bodies, you think my mind immediately goes to blowjobs?

            1. I thought your mind was permanently locked there after The Incident.

              1. We don’t use the l-word any more.

            2. Q: What is the definition of trust?

              A: Gay cannibal.

      2. I’m shocked, SHOCKED, to discover that Obama is voicing some concerns about gay marriage purely for political reasons.

    1. I like your last comment on your page, Pro L. I’ll repost it (without your damned permission) so all can see:

      Pro Libertate said…
      This is why libertarians can’t win. This bullshit gets lauded to the skies, while we quietly note that we would have let people do what the fuck they wanted decades ago.

      ’bout sums it up.

      1. You can have it. It’s our joint legacy that we won’t be remembered for.

        1. Our joint legacy doesn’t amount to much… we can’t even get the stuff legalized…

  8. Romney is just vulnerable, period. I hope he’s been working on his concession speech. It’s never too early when going against Obama.

  9. Given recent reports of Romney’s sociopathic behavior in high school, I won’t bother wasting time wondering if he favors marriage rights for gay people; I just hope his views have evolved enough for him to favor the right of gay people to wear unusual haircuts without a gang of vicious pack animals holding them down and forcibly cutting their tresses.

    1. Romney was bullying kids in high school? Oh shit, he just lost the election, today, right now, right there.

      There are posters in my daughter’s school about bullying. It’s the cause celebre.

      1. Romney apparently led the pack that held a kid down and forcibly cut his hair. That probably would’ve been assault with a deadly weapon if he didn’t have a rich daddy.

        Some types of teenage stupidity, people outgrow. But I seriously don’t know if it’s possible for a 17-year-old who still hasn’t figured out “it’s wrong to assault people” is capable of growing into such knowledge. I suspect that if you haven’t developed a conscience and basic empathy by age 17, you’re not likely to ever do so.

        1. Seriously, most 17 year old boys do things at that age that they would never contemplate as mature adults.

          The testosterone, it runs out our ears.

        2. I dunno, seems like a tempest in a teapot. I heard something about this today on NPR but I didn’t catch the details.

          I was physically attacked a few times in Jr. High and High School in what authorities would call “assault and battery” but what we called “getting punked”.

          I’m pretty sure those kids grew up to be reasonably decent members of society, and I hold no particular animosity towards them or think it would disqualify them from being considered empathetic.

          Although I did hear one of them became a cop– but was struck by a car and killed on the job during a traffic stop.

          Karma’s a bitch.

          1. Karma’s a bitch.

            And uhh, that was a joke for the concern trolls.

        3. Cutting somebodies hair, while incredibly stupid and a totally assholish thing to do, is not assault. And definitely not assault with a deadly weapon, I don’t care who your father is. (And most definitely not 50 years ago when we weren’t a society of pussies that called everything assault)

          There are plenty of things to crucify Romney for without pulling on peoples heart strings with bullshit like that.

    2. “Romney’s sociopathic behavior”

      Doesn’t that make him the best choice?

      1. No, it makes him the obvious choice. There’s a difference.

      2. One sociopath is much like another.

    3. Good. Maybe he’ll beat up some members of Congress.

      I’m not voting for Romney, but I’m even more emphatically not voting for Obama, no matter how much of an asshole Romney has been.

      1. I doubt I’ll vote for anybody either, especially if I’m still in Connecticut this November; the libertarians couldn’t even get candidates on the state ballot in the 2008 election, probably because they were too busy focusing on important matters like chugalugging silver milkshakes or cozying up to Haitian ex-dictators to actually get their electoral shit together.

        Still, even though I’m not going to vote for Obama, I can identify at least one area where he’s less odious than Romney: when Obama panders to voters, at least he doesn’t pander to the anti-gay bigoted ones. He and Romney are equally bad on civil liberties, equally bad on fiscal responsibility, equally bad on endless wars … but Obama is marginally less likely to lose his shit over the prospect of two adults engaging in non-procreative sexual activities, or at least marginally less likely to pander to voters who do.

        1. bullshit. Obama has managed to pander to both sides, depending on whose support he thought was needed. The man was against gay marriage until this week. When deep-pocketed gays threatened to withhold cash. At least Romney is consistent on this issue, albeit wrong.

          Obama sent the Human Gaffe Machine out as a stalking horse to see how the “evolution” meme would play. Predictably, the mainstreams swallowed it hole and Obama was to free to invite one of the least inquisitive journos around for the big announcement. Come on; the man should be shunned for the cravenness of his pandering.

        2. I’m definitely no fan of Romney. But I don’t see any candidate (other than a libertarian, of course) taking any steps to expand the civil liberties of anyone. Rather the reverse.

          I’m not saying I think it’s okay to deny gays equal rights, but this issue is not the most pressing one facing our nation–government is out of control in so many ways, violating all of our civil liberties and totally trashing our economy. I think it’s a sideshow to far more critical issues that are largely being ignored.

          I should be able to vote for Johnson–the LP is usually on the Florida ballot.

        3. Still, even though I’m not going to vote for Obama

          Liar or Racist?

    4. Jennifer, before swallowing the WaPo hit piece whole, you might want to check your facts.

      The “victim’s” family (he is conveniently dead) disputes the whole thing.

      One of the “witnesses” didn’t even know about it until a few weeks ago.

      A bunch of the same classmates were interviewed by Automobile magazine (current issue) I believe, and none of them mentioned it, and they were generally complimentary.

      Its a smear job, distortion, and, of course, utterly irrelevant.

    5. Women always come up with some stupid reasons why they won’t vote for a Republican in the presidential election. Four years ago it was “McCain is mean to his wife.” Now, it’s “Romney was a bully in high school.” It least the latter sounds more substantial than the “dog on the car roof” thing they had to rely on up until now.

  10. The gay issues which ought to resonate most with people are wills and health care – that is, the right of gay people to leave property to their lovers by will, and to designate their lovers as health-care decision makers (including hospital visitation). This can be done with specific laws protecting gay people who make such legal arrangements against interference from greedy family members.

    I would imagine Romney would support such laws, but for the fact that he’s not running for state office.

    But what about protecting gays, not from greedy relatives challenging their wills, but from greedy *governments* trying to take their property with class-warfare inheritance taxes? Or generally with “taxes on the rich?” Lots more gays stand to be victimized in their capacity as “the rich” than in their capacity as “teh gayz.”

    1. I don’t think you need such laws at all. A valid will and power of attorney is valid, regardless of how much your family hates your gay lover. I have never heard of anything like that being thrown out because of gayness.

      If you have, I would be very interested to read about it.

      1. I heard about it in the scare-scenarios invoked by gay-rights folks. If they were exaggerating, then I’m sorry for taking them at their word.

        I wonder what else they’re exaggerating?

  11. Does anyone else think Gay Marriage is being raised as a “key national issue” suddenly (after being largely ignored since bush) simply because its one of those issues, like abortion*, which provides outsized voter-motivation by turning the election into more of a “cultural” question, and serves to deflect debate/questions away from actual “hard policy” choices, like fiscal policy or foreign affairs…? Basically, a political Red Herring.

    I appreciate that homosexuals don’t consider gay marriage a “Small” issue, and is a fundamental question of Rights… but The truth is that Gays who marry are a minority OF a minority group… and unlike abortion, isn’t an issue that is going to substantially change people’s lives whether its implemented fully, in part, or not at all.

    *I considered abortion a red herring, and a ‘deflection’ issue because so many people felt so strongly about it… but even when you surveyed women, a very small proportion EVER had or were expecting to have to have the procedure. Not only that, politically, despite the rhetoric, I have always believed politicians use the issue like a Beach Ball… with neither side ever truly planning to *completely* change the status quo, fundamentally (e.g. either completely BAN or remove ALL constraints). They kibuki-fight in public, while always horse-trading around the issue.

    1. I think many politicians treat *all* issues with this sort of cynicism. Economic, cultural, all issues.

      Do you think that all the politicians who campaign on promises to respect the states re medical marijuana are/were being sincere? Or were they making promises they had no intention of keeping, just to catch a few votes?

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