Federal Judiciary

Obama in the Closet

Pres. Barack Obama wants us to believe he's the most ineffectual opponent of gay marriage imaginable.

If we take him at his word, he's a supporter of the traditional definition of marriage who just happens to undermine his own position at every turn. If only this were the way he went about advancing the rest of his agenda. What makes his opposition to gay marriage different, of course, is that he doesn't believe it.

#ad#Obama is a closeted supporter of gay marriage who's too cowardly and cynical to be open about it. This should be a grave insult to everyone -- to the gay-rights lobby, whose dearest cause he won't frankly embrace, and to the broader public, whom he apparently deems unworthy of hearing his true views.

In a classic case of political passive-aggression, Obama is creating the greatest possible latitude for the courts to impose gay marriage by fiat, culminating perhaps in a Supreme Court decision that would be the gay-marriage version of Roe v. Wade.

His Department of Justice just announced it will no longer defend the constitutionality of the Defense of Marriage Act (DOMA), passed by Congress and signed by Pres. Bill Clinton in 1996. Obama opposes DOMA and so do top Justice Department officials. Yet they all had been making at least a show of acting consistently with the longstanding practice of defending from constitutional challenge all laws that can reasonably be defended -- until now.

DOMA defines marriage as a union between a man and a woman for the purposes of federal law, and says that states don't have to recognize gay couples married in other states. The act is intended as a bulwark against leveraging gay marriage in one state to spread it to all other states. Destroying this obstacle has always been a key objective of advocates of gay marriage.

Perhaps the department should get points for a new forthrightness. Its defense of DOMA has, shall we say, lacked vigor. In a California case, it went out of its way to say it 'does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.' One pro-gay-marriage legal observer called this concession 'a gift to the gay-marriage movement, since it was not necessary to support the government's position.'

Can you imagine the administration undermining its brief for, say, the individual mandate like this? An Obama Justice Department official explained the marriage strategy thus: 'We have not only discharged our responsibility to defend the constitutionality of a congressional statute, but we've done so in a way which reflects the policy values of this administration.' In other words, they mounted a deliberately backhanded defense. 

Now the administration purports to have discovered that there's no reasonable defense of DOMA whatsoever. How can this be so? Marriage has been defined as a union between a man and a woman since before the country's founding and before the adoption of the Fifth Amendment of the Constitution, which DOMA allegedly violates. 

The logic of the department's latest position is that all laws defending traditional marriage are unreasonable and unconstitutional. This makes Obama's own position condemnable under the reasoning of his own Justice Department, blessed by none other than himself. He stands exposed as the moral equivalent of a racist -- by himself.

No matter. He'll continue to duck and cover under the dodge that his position is 'evolving,' as he put it at a year-end press conference, while liberal judges work their will. When the judges finally manage to decide the issue for the nation, or after his reelection in 2012, whichever comes first (if either happens at all), he can reveal his full 'evolution.'

Such brazen evasion is an offense against basic democratic hygiene. President Obama should take his case to the voters, and persuade them to adopt gay marriage through tried-and-true democratic means. He might as well be honest: He's a supporter of gay marriage. What's he ashamed of?

— Rich Lowry is editor of National Review. He can be reached via e-mail, comments.lowry@nationalreview.com. © 2011 by King Features Syndicate.

Full post as published by Bench Memos - National Review Online on February 25, 2011 (boomark / email).