Family Law

The Case for McCain

by Dale Carpenter
First published in the Bay Area Reporter on October 23, 2008

John McCain has made it hard to vote for him. Linking Barack Obama to terrorism was despicable. Choosing Sarah Palin was reckless. Still, a gay voter who's closer to McCain's views on economic and foreign policy can support him with a clear conscience. That's because the practical differences on gay issues — while clearly favoring Obama — are much less dramatic than gay partisans have argued.

McCain is the most gay-friendly Republican presidential nominee in history. That's not just faint praise. Despite election-season pandering to the religious right, he's not one of them and they know it. He has openly gay staffers and campaign officials. He has defended his gay colleagues when they've come out. Unlike President Bush in 2004, McCain's campaign has not exploited homophobia.

In a first for a Republican presidential nominee, McCain recently responded in writing to questions from the gay press, in this case the Washington Blade. The responses, while occasionally mealy-mouthed, were encouraging. [An editor's note with the Blade interview indicated that the written responses came from the McCain campaign; it is unclear whether McCain himself actually answered the questions.]

Take the Employment Non-Discrimination Act, which McCain voted against in 1996. He told the Blade that he now supports "non-discrimination in hiring for gay and lesbian people" and will "give careful consideration" to ENDA. Moreover, his lingering reservations are not "anti-gay": if drafted too broadly, the law will needlessly erode religious liberty and generate frivolous and costly litigation.

Skeptics will say these are excuses for vetoing ENDA no matter how broad it is. They may be right. But it's significant that McCain, who unlike Obama has a long record of working productively with the other party, promises to consult Congress to meet these concerns.

Obama would sign a broad ENDA. A Democratic Congress wouldn't have the votes to override a McCain veto, meaning a narrower bill, if any. So the advantage goes to Obama, but the difference is smaller than once supposed.

Obama supports a hate-crimes law covering sexual orientation. McCain would veto it on federalism grounds. There's no evidence such laws actually deter hate crimes, so Obama is better on an issue that doesn't much matter.

Then there's "Don't Ask, Don't Tell," which Obama opposes. McCain voted for it in 1993 but now he says he "will have the policy reviewed." He is open to ending DADT, but only if military leaders agree. That's a big difference between them, you say.

Not so fast. Like McCain, Obama would need the support of military leaders to end the ban. He would then have to pressure Congress in an area of Democratic political vulnerability. Neither of these is a given. Unlike McCain, Obama has no military background and little credibility with the military brass. Also unlike McCain, Obama has an undistinguished legislative record.

Thus, it's unlikely that DADT would be repealed in an Obama administration. It's better to have a president on record against DADT than one who's agnostic about it, but the outcome is likely to be the same.

Both men oppose gay marriage. However, McCain voted for the Defense of Marriage Act, while Obama opposes it.

Here we have another distinction that makes little practical difference. Repealing DOMA would be very difficult, requiring full presidential commitment and masterful legislative skills. Obama might be up to this task, but there's little evidence of it.

Obama opposes California's Proposition 8, which would eliminate same-sex marriage. But Obama's "opposition" has consisted of a single letter sent several months ago to a local gay Democratic club in San Francisco. No public statements. No TV or radio ads. McCain supports Prop 8, but never mentions it. Again, there's a paper advantage to Obama here, but neither his nominal opposition nor McCain's nominal support actually matters.

Despite what he once suggested, McCain doesn't oppose gay adoptions. In fact, he told the Blade that he "respect[s] the hundreds of thousands of gay and lesbian people" raising adopted children.

And never forget that McCain led the charge against the Federal Marriage Amendment, loudly bucking his own party when it really counted. Obama has never taken a position on gay rights that cost him politically. McCain did so on the single most important gay issue of this generation. (Palin recently broke with McCain and endorsed the FMA, just as Dick Cheney broke with Bush in 2004 to oppose the FMA. But Palin is not the presidential candidate in this race, McCain is. Amending the Constitution is off the table politically, regardless of what she thinks — thanks in part to McCain.)

Legislatively, the upshot is this: Under Obama we'd get a broad ENDA and a symbolic hate-crimes law. Under McCain, we might get a narrow ENDA and no hate-crimes law. That's all. It's a difference, but hardly a huge one.

Obama's judicial nominees will be more gay-friendly than McCain's. But McCain will face a strongly Democratic Senate, moderating his choices. He also tends to favor judicial-restraint conservatives who respect precedent rather than judicial-activist conservatives who want a right-wing legal revolution. So while they won't advance the cause, McCain's nominees probably won't reverse prominent gay-rights legal victories, either.

None of this will persuade a liberal voter who prefers Obama on lots of other issues. Nor will it persuade a single-issue gay-rights supporter. I respect these views. I myself opposed Bush in 2000 and 2004 because he backed sodomy laws and the FMA. These were red lines for me and Bush crossed them.

But this year is different. With the differences on gay issues tolerably smaller, other issues become more important. For those of us who worry about the effect of an Obama administration combined with a Democratic Congress on taxes, spending, trade, Iraq, and national security against terrorism, a vote for McCain this year is not a betrayal of our commitment to gay rights. It's the right choice.

Full post as published by Independent Gay Forum on October 25, 2008 (boomark / email).