Both Stave Sanders and Pam Spaulding weigh into the Obama statement-Iowa marriage decision waters, and I appreciate both of their takes.
I’d like to raise a slightly different question, though. For those who haven’t seen either version of President Obama’s statement on the case (one replaced the other shortly after its release, with a slight but significant distinction discussed below), here’s the final version:
“The President respects the decision of the Iowa Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage. Although President Obama supports civil unions rather than same-sex marriage, he believes that committed gay and lesbian couples should receive equal rights under the law.”
I don’t quite understand why the White House amended their news release to, per a first-glance reading, strengthen the language from asserting that gay and lesbian couples “should receive protection under the law” to the slightly more awkward statement that those couples “should receive equal rights under the law.”
Using the equal rights language, it seems, draws attention to the fact the Iowa Supreme Court already explained why, under an equal protection argument, civil unions don’t cut it. From the Court:
Other courts have allowed their state legislatures to create parallel civil institutions for same-sex couples. See Lewis v. Harris, 908 A.2d 196, 221 (N.J. 2006); Baker v. State, 744 A.2d 864, 887 (Vt. 1999).
Iowa Code section 595.2 is unconstitutional because the County has been unable to identify a constitutionally adequate justification for excluding plaintiffs from the institution of civil marriage. A new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution.
That’s as simple as it can be put, and anyone who knows how smart (and well-educated in the law) the President is knows darn well that he understands that argument.
So, why alter a statement in which he is defending civil unions over civil marriage equality to emphasize that he is ignoring equal protection principles in devising his position?
Or, is the opposite happening? Did someone decide that “protection” sounded too much like “equal protection,” so the White House altered the statement to make it “equal rights,” thinking — as in Vermont in 1999 and 2000 — that the bundle of marriage rights can still be, so the argument goes, granted under the name of civil unions?
Under that second reading, despite Pam’s suggestion that it’s an improved reading, the second statement is less supportive of LGBT equality aims and logically coherent throughout the statement.
Thoughts?
Popularity: 1% [?]
Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
I assumed he was aligning it with Sen. Harkin’s statement, which basically said, “I personally don’t think there should be same-sex marriage, but I think same-sex couples should have equal rights, and the court’s said that the only way to have equal rights is to have same-sex marriage, so OK.”
Was there really a need to update/alter/correct it then?
Additionally, I think that is a close approximation of Harkin’s statement, but I think you have to play connect the dots — on either statement — to get that from Obama.
Chris, my guess is that the revised language about equal rights didn’t really have anything to do with the subtleties of equal protection doctrine, but rather was intended as a better way to reiterate the Obama campaign’s position — which continues as a position of the administration — that gay and lesbian couples should be eligible for all the various FEDERAL rights/benefits/etc., that have traditionally been accorded to married couples, whether they have a “marriage” or a “civil union.” See http://www.whitehouse.gov/agenda/civil_rights/. The idea that a couple in a civil union, which is a sub-marriage status, could nonetheless be treated by the federal government in the same way as a married couple would be quite innovative and progressive. Of course, saying it is one thing; making it a priority and committing political capital is something else.
Steve, I agree that you might be right on that point — but that still is about giving the bundle of marriage rights rather than enforcing equal protection of the laws.