Three federal judges have now ruled that state bans on
same-sex marriage violate the Constitution’s “equal protection” clause.
President Barack Obama seems to disagree.
He has repeatedly stated that, while he personally supports
same-sex marriage, the issue should be left to the states. In other words, the
nation’s first black president holds a states-rights position on what has
shaped up to be the civil-rights issue of this generation.
Most states ban same-sex marriage. And if they are left to
work out the issue for themselves in the years and decades to come some will
likely reverse their bans, but many won’t. The question will remain: Are
same-sex marriages protected under the 14th Amendment?
It’s hard to imagine that Obama, a former constitutional law
professor who has cited the 14th Amendment when discussing gay rights, believes
that the equal-protection clause does not apply to gay and lesbian couples
seeking a government-issued marriage license. More likely, he has taken a
go-slow approach to avoid alienating constituencies—and inflaming the
opposition.
His caution has been understandable perhaps even helpful in
the short run. But it will become increasingly difficult for him to avoid
taking a clear stand. Marriage equality is likely to come before the U.S.
Supreme Court before the end of his term, possibly within the next year. At
that time Obama will have to decide whether to support the plaintiffs.
He should, and he should not wait for the court to force his
hand.
The presidential bully pulpit has been a powerful force in
acceleration the evolution of freedom and equal rights in America, and the
energy with which presidents have used their platform – or not—shapes their
legacy.
In 1957, President Dwight Eisenhower declined to speak out
in favor of civil rights, saying, “I don’t know what another speech would do
about it right now.” In response, Martin Luther King Jr. and the Southern Negro
Leaders Conference sent a telegram urging him to “use the weight of your great
office to point out to the people the rights of all human beings.”
While a strong case can be made that history has so far
under-appreciated Eisenhower’s record on civil rights, his unwillingness to make
energetic use of his office is widely accepted as a failure.
President John F. Kennedy is still faulted for waiting two
and a half years to fully embrace the cause of civil rights. When he finally
did, in an Oval Office speech in June 1963, he cast the issue in terms of
morality and American values. And while this may have angered opponents, it
inspired more hope than hate. It became a turning point in the civil-rights
movement and saved his presidency from history’s harsh judgment.
This Congress is hardly likely to pass a low prohibiting
discrimination in the granting of marriage licenses. But that should not stop
this president from addressing a controversial question. If Obama believes that
the 14th Amendment protects same-sex marriage, he should explain why he has
changed his own mind. It is an argument that Americans – who polls show favor
legalizing same-sex marriage – are increasingly ready to accept. If he makes
the case in a tone of respect toward opponents and if he tempers proponents’
optimism by acknowledging the lengthy nature of civil-rights movements, he can
help soften the fallout from the eventual Supreme Court decision, whatever it
may be.
For a president so stymied by an obstructive Congress, an Oval Office address on same-sex marriage could be a high point of his tenure. It would also be a fitting way for a barrier-breaking president to secure his place among leaders who have pushed to extend the full rights of the Constitution to all Americans.
