By Paul M. Smith, Partner, Jenner & Block. Mr. Smith successfully challenged the constitutionality of sodomy laws in the landmark Supreme Court opinion, Lawrence v. Texas, and is a former chair of the ACS Board.
It takes no great insight to say that President Obama’s announcement of support for equal marriage rights for same-sex couples reflected, in part, mounting political pressure on the president. As Adam Nagourney said in Thursday’s New York Times, the president “was at risk of seeming politically timid and calculating, standing at the sidelines while a large number of Americans – including members of both parties – embraced gay marriage.” In fact, it became clear the campaign had misjudged the politics of this issue. Experience was showing it was close to impossible for Mr. Obama to talk with core members of his base without facing the same awkward question over and over – when are you going to get done “evolving” on the issue of equal marriage rights? That said, it does seem over the top for the Log Cabin Republicans to call the announcement “offensive and callous” on the same day when so many others, gay and straight, were inspired by the fact that a sitting president had moved so far toward advocating complete equality for LGBT citizens.
The more interesting question is why the original decision to avoid this issue until after the election proved to be so wrong. After all, candidates avoid controversial issues all the time when voters and the press will allow it. The answer is in part that the issue of equal marriage rights is constantly being brought up this year as a result of referenda that will occur in four states in November (not to mention the vote just held in North Carolina) as well as the Prop 8 and DOMA lawsuits.
But the answer is also more fundamental. LGBT citizens are the last people in this country who face massive “de jure” discrimination – discrimination written expressly into the law. Most states now have constitutional amendments expressly excluding same-sex couples from marriage. Federal law flatly states that the marriages of same-sex couples (and only same-sex couples) will not be recognized or respected for any federal purpose. Combine this stark reality with the complete transformation of attitudes about gay rights among people under 40 and you get a litmus test. The people directly affected may be a small percentage of the population but to them and to their many friends in the straight community it is simply no longer acceptable that the law should so brazenly condemn people to second-class citizenship just because of who they love. And it matters to them when politicians don’t get it.
Does that mean victory is at hand? Hardly. The discriminatory laws are still there and are not going away fast. The vote in North Carolina is another cautionary tale. But there has been a sea change all the same. We will win some or all of the referenda in Washington State, Maryland, Minnesota and Maine this fall. And we will continue to win important judicial victories, even in the Supreme Court – victories that are made much easier for judges and justices if they perceive that the American public is behind the movement toward greater equality. The nice thing is that the President Obama’s announcement will itself be a powerful engine producing further change in public attitudes, even if it was also a somewhat involuntary reaction to the changes that have already occurred.
[image via White House photogallery]