President Obama appears to be playing both sides once again. The Obama administration has recently decided to no longer defend the Defense of Marriage Act (DOMA) in court, despite the president’s insistence that he does not support gay marriage. Everyone is surprised, both those in favor of gay marriage celebrating what appears to be a shift in the president’s opinion and those on the right who believed gay marriage would not be on the agenda in this administration. Both praise and criticism has been coming in, but none of it is justified.
For one thing, the Obama administration will still enforce DOMA. They may not send in lawyers to defend the (arguably) unconstitutional law, but the president has made it clear that the only way this law will be ignored completely is if a court strikes it down or Congress repeals it – and unlike ‘don’t ask, don’t tell,’ that is far more difficult and politically perilous. Over 60 percent of Americans were in support of that repeal, while views on allowing gay marriage are more or less evenly divided. Repealing DADT still involved a long debate and took the final months of the last Congress to happen – repealing DOMA would be far more problematic.
This decision not to defend the law is also one made out of necessity, not to wage a campaign for gay marriage. To defend DOMA during the most recent court challenges involving the law, the Obama administration would have had to make the difficult argument that homosexuals have not been historically targeted or even that sexual orientation can be changed.
Courts have largely failed to identify sexual orientation as a class of people requiring more legal protection, as they have done for race and gender. However, gay rights activists view the president’s decision as the beginning of enhanced legal rights and protection, much to the displeasure of many on the right.
But these conservatives are also wrong to demonize the president for this move – past presidents have refused to defend a law, usually to make a statement against a controversial policy or to lead the charge to change it. The most obvious is the always controversial and messy War Powers Act – even though Congress has declared that the president must obtain permission to engage in military action, every president since the law was passed has chosen to ignore it, some declaring it unconstitutional. That law is not really comparable to this one, as courts try to avoid siding with one branch of government over the other, but in cases such as this, Congress or other groups will still have every opportunity to defend the law should they feel compelled to do so.
Critics have also charged that the president is trying to focus on social issues rather than the economy. Setting aside the fact that these very same critics have been known for campaigning on social wedge issues for decades, this move was a well-deliberated response to recent ongoing legal battles, not a unilateral, out-of-the-blue pronouncement. If the president wished to make this a major issue, he could have begun spurring Congress to look into repealing DOMA, something that is obviously impossible given the Republican majority in the House. Obama is far too measured and cautious to embark on this crusade, and if his campaign for health care is any indication, perhaps it is better that he leave this issue mostly untouched.
What President Obama has done is not a brave first step toward ensuring gay rights, nor is it a clear indication that he will fight for gay marriage and will begin to abandon support for any law or policy with which he disagrees. Like he does with most issues, President Obama maintains the safe middle road option, allowing the status quo to remain as much as possible while fighting the smaller battles at the edges that mostly have popular support.
Gay rights activists have long overlooked the president’s assertion that he is not in favor of gay marriage, believing it to be a political statement not reflecting his actual views and have read too much into his lukewarm support in recent years for their cause. Similarly, DOMA remains the law of the land, and even without the justice department’s involvement, it will continue to legally discriminate against homosexuals.
Kerry Wakely is a third-year political science major. He can be reached at firstname.lastname@example.org.