On same-sex marriage ruling, Obama risks alienating his base

The gay community was ecstatic last Thursday when a District Court judge in Boston ruled unconstitutional parts of the 1996 Defense of Marriage Act, which defines marriage as between a man and a woman. Gay-rights activists who had been frustrated with the Obama administration’s halting approach to its promised repeal of “Don’t Ask, Don’t Tell” finally saw tangible progress, as Judge Joseph L. Tauro declared that same-sex couples are entitled to the same federal benefits as heterosexual couples.

President Barack Obama. Photo: WDCpix

“Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves,” Tauro argued. “And such a classification the Constitution clearly will not permit.”

Gay-rights groups like the Human Rights Campaign hailed the decision as an important step toward equality, while social-conservative interests like the Family Research Council slammed it as an affront to traditional values.

But the Obama administration could be setting up same-sex marriage advocates for another disappointment as it weighs an appeal of Tauro’s ruling. And both options for the administration come with risks: Challenging the ruling would be perceived as a major snub by the gay community, whereas standing behind it would give Republicans a powerful political weapon to use against Democrats in the November elections.

“President Obama has two choices: lose the gays, or lose the House,” said Michael Rogers, a Washington-based activist famous for outing closeted gay lawmakers who block the advancement of gay rights. “At least that’s how many leaders in the gay community see it.”

Appealing a court ruling that challenges established federal law is viewed as a Justice Department obligation, regardless of White House policy preferences. And lawyers close to the issue expect that to hold in this situation.

“We fully expect that the Obama administration will appeal the decision,” said Janson Wu, an attorney for Gay and Lesbian Advocates and Defenders (GLAD) who argued on the winning side of the case. “It would be unusual if they didn’t.”

The Obama administration is in no hurry to announce its plan of action; spokeswoman Tracy Schmaler said only that the Justice Department is “reviewing the decision.” A decision not to appeal the ruling would amount to a break from longstanding precedent in order to champion same-sex marriage, pitting national Democrats against the majority of Americans on a hot-button issue ahead of an already harsh midterm election climate.

“Polling indicates that DOMA is really popular in the public nationwide,” said Patrick Egan, a political scientist and expert on LGBT politics at New York University, “and there’s a lot of resistance in both houses of Congress to repealing DOMA, even among Democrats. So they realize that’s pretty much a political loser for them.”

But challenging Tauro’s decision would mean fighting to reverse what the gay community, a strong Democratic constituency, considers important and long-awaited progress. To some activists, a court battle could morph the community’s perception of Obama and the Democratic Party from sympathetic allies into outright adversaries.

“The courts are putting Obama and the Democrats in a pretty difficult spot that will probably force the administration to continue to defend this law that’s unpopular with its base,” Egan said. “They have to make arguments about why DOMA should be constitutional, and those arguments are going to go against the grain of gay and lesbian groups. So it really puts them in a bind.”

Apparently sensing a political opportunity, Republicans are already pouncing on the White House’s lack of displayed enthusiasm for DOMA in the face of the Thursday ruling.

“The Justice Department’s half-hearted defense in this case — exemplified by DOJ’s own attorney asserting that President Obama opposes DOMA — is unacceptable,” said U.S. Rep. Lamar Smith of Texas, the top Republican on the House Judiciary Committee, according to Politico. “The president’s personal views have nothing to do with the defense of a law passed by Congress.”

Smith’s attack could be a preview of GOP attacks to come in anticipation of November, which could further damage Democratic prospects in socially conservative regions during an election cycle where — as even the White House admits — the House of Representatives is up for grabs.

The administration has a complex relationship with DOMA, defending it last year in a court briefing, citing executive obligation, even while signaling Obama’s opposition to the law. “The president has said he wants to see a legislative repeal of DOMA because it prevents LGBT couples from being granted equal rights and benefits,” DOJ’s Schmaler said last September.

One progressive strategist with Democratic clients in the November elections acknowledged the perils of supporting Tauro’s ruling, but nevertheless said the White House’s wisest course of action would be to stand by it quietly.

“They’ve already pissed off the gay community unnecessarily, defending DOMA in court, and doing it while comparing being gay to incest and bestiality,” said the strategist, who requested anonymity to speak candidly. “I know we have to worry about Blue Dogs, but Democrats are in serious danger of not only losing gay votes, but losing money from the community too, and having more Dan Choi-like protests.”

While support for same-sex couples’ rights is trending upwards, polls suggest that a majority of Americans continue to believe the concept of marriage should be reserved for heterosexual unions. The split is both generational and regional — younger Americans, for example, have more positive views toward same-sex marriage, and support is higher in the Northeast than in the South.

“We’re not going to see a repeal of this law anytime soon,” Egan said. “But polling nationally indicates that, if the current trends continue, a majority of Americans will support legal same-sex marriage sometime in the next decade, perhaps by 2014 or 2015.”

And if same-sex marriage is to be legalized in a sustainable manner, the most viable path may be through the legislative process — a long and thorny one — rather than the courts. The story of California in 2008 serves as a cautionary tale against bypassing the legislative route, when a court ruling that legalized gay marriage led to the passage of Proposition 8, which created a constitutional amendment overturning the decision.

“What we know from previous experience is that you actually need a supermajority of Americans to overturn a law like DOMA,” Egan added. “You need to overcome a filibuster, and you need a lot of members of Congress convinced that it’s not electorally risky to vote to repeal the law. So you need a lot more than 50 percent of Americans supporting same sex marriage.”