President Clinton
Michael Tracey, a freelance journalist, reports in The Nation today that President Bill Clinton has come out in support of marriage equality. As everyone recalls from Cheney’s latest marriage statement, though, the devil is in the details. Here’s what Tracey reports:
Asked if he would commit his support for same-sex marriage, Clinton responded, “I’m basically in support.”
This spring, same-sex marriage was legalized in Iowa, Vermont, Connecticut, Maine and New Hampshire. In his most recent remarks on the subject, Clinton said, “I think all these states that do it should do it.” The former president, however, added that he does not believe that same-sex marriage is “a federal question.”
Asked if he personally supported same-sex marriage, Clinton replied, “Yeah.” “I personally support people doing what they want to do,” Clinton said. “I think it’s wrong for someone to stop someone else from doing that [same-sex marriage].”
The question this statement raises is important: If someone — Clinton or otherwise — thinks “it’s wrong” to stop gay couples from marrying, then why is it wrong? And, assuming that equality or liberty principles underlie the answer of “why” it’s wrong, then why is it not a “federal question”?
Of all politicians, Bill Clinton is the President most responsible for same-sex marriage having been made into a federal question because of his signing of the Defense of Marriage Act into law. If Massachusetts same-sex married couples could file a joint tax return, the Gill lawsuit — challenging the federal definition of marriage — would not have been filed. So, to that extent, it’s completely disingenuous for Clinton to say such a thing. Certainly, it is at least a “federal question” to the extent his DOMA damage needs to be undone.
But, I don’t think that’s actually what Clinton was getting at when he said that. It likely was more of a legalistic statement because of his use of the legal term, “federal question.” When a politician, from Cheney to Clinton, says that marriage equality is not a federal issue, they are saying one of two things. They are saying either that they don’t think it should be raised in federal courts or that it would not succeed if raised.
If they don’t think the case would succeed, the politician should be asked to explain why not. Is it just that the politician believes the current make-up of the judiciary would be hostile to the arguments, or does the politician believe that equality and liberty principles do not apply to marriage equality?
If a politician is saying that such a case should not be raised in federal courts, is he or she just saying that he or she doesn’t think that route is the smart political route to take? Why not?
[Also, despite suggestions to the contrary, nothing in Clinton's statement is anywhere near a reversal on DOMA. It certainly was not a statement that he supported a repeal of DOMA. Section 2 of DOMA allows states to ignore same-sex marriages entered into in other states; Section 3 defines marriage at the federal level as between one man and one woman. Clinton's statement was personally supportive of marriage equality and supportive of state actions that allowed for marriage equality. That's all.]
The point is that as “supporting” marriage equality becomes more of a mainstream position, we need to be asking politicians specifically what that means and why.
[H/T to Pam Spaulding. // I added in the paragraph above about DOMA reversal/repeal to clarify other reports on Clinton's comments.]
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Chris Geidner is a lawyer in Washington, D.C., who writes at Law Dork, contributes regularly to Metro Weekly and has written for The Atlantic Online, Advocate.com, Salon and other publications. An extended biography can be found
I think you are correct that someone trained in the law, as Bill Clinton was, may have been using “federal question” in the technical sense of whether state recognition of same-sex marriage is mandatory under the federal Constitution. I don’t think you can make much of a “liberty” argument for it, because same-sex couples are at liberty to have marriage ceremonies; what they actually still need is the equal protection of the law in the form of recognition of their marriages. Given that sexual orientation is not a suspect classification under SCOTUS precedent, the only way in current law to make an Equal Protection claim would be by claiming that the failure to recognize same-sex marriages discriminates on the basis of sex, just as Virginia’s failure to recognize interracial marriages discriminated on the basis of race. While that argument has gotten very little support so far, I’d be quite interested to see how this Supreme Court deals with it, especially in light of Roberts’s comments in the school integration cases about how the only way to stop seeing race is for the government to stop using it to make decisions. Would that same rationale apply to the government’s using the sex of the partners to determine which marriages to recognize?
Not the least bit surprised by Clinton’s “support” of SSM…in principle. And thats what that is, support in principle. Clinton, like Obama is a pragmatist and not a firebrand, which may be disappointing at times, but in the long run is the smart move. Though I prefer pragmatists like this voice a bit more idealism to remind their supporters what they are up to.
Clinton like Obama would rather see this issue fought at the state level so that there is a sense of legitimacy with recognition of SSM that might be lacking with an edict from the Federal government.
But rather than spell out that sometimes we compromise legal and moral principle for the sake of making sure that changes take root, he and Obama has done side steps by claiming its an issue for the states, when it really is a case of equal protection, especially for those politicians who court support from the LGBT community.
The injustice of this entire issue is knowing how the law should be applied and yet knowing that law alone does not equal social change, so a slow PR campaign of gradual “acceptance” is fought.
Reconciling that is not easy, maybe it shouldn’t be reconciled at all either.Maybe these imperfect steps are the key to driving us forward in order to continue this tug of war resulting in hard fought, unjust compromises as we progress upon this road of civil rights as we have over more than 200 years.
Manos Torgo,
Are you really certain that both Clinton and Obama think that the states’ failure to recognize SSM violates the federal Constitution? I think it does, but I also can see a good-faith reading of the Constitution that would come to the opposite conclusion. You can oppose something as unjust and unfair without thinking that it also must be unconstitutional.
Yes, I do believe that in principle they see states voting to ban SSM as a violation of the Constitution.Thomas Jefferson is a prime example of someone who in principle was not in favor of slavery and recognized it as being morally wrong….but in practice…he did little or could do little.
That’s why I view them as pragmatists more than just weak willed politicians. I sense that they believe something in principle, yet they must find a way to deliver in practice. So thjey fight for small victories in order to win the larger war.
Or I could be completely delusional and projecting my own values on these guys. I am open to that possibility.
But a moral principle is not the same as a Constitutional one. Certainly Jefferson could not claim that slavery was unconstitutional, given that it had been specifically provide for in both the 3/5 Clause and the requirement that persons held in servitude who escaped to free states must be returned to the slave states.
Thank you for raising these questions. I will be speaking with Clinton’s spokesperson shortly, and can ask for clarification.
All powers not specifically allocated to the federal government are reserved to the states. Marriages are defined and solemnized by each individual State. If one state wants to define a different type of marriage relationship then it can but other states do not have to follow. People are equal within the state boundary but the concept of ‘equal’ does not require the laws of different states to be the same. If one state, say California, wants to legalize medical marijuanna for treating illness and does so, is a Californian in Texas or a Texan not being treated equally if Texas decides not to and arrests the Californian and/or Texan for possession)? If the concept of equal expands to federal jurisdiction for state powers then the states lose their individual competency and jurisdiction over their laws.
If this gets to SCOTUS then I think that SCOTUS will say what I have just said: that the federal Constitution does not even mention marriage and therefore the power to define and solemnize marriage is reserved to the individual states.
Zeppo,
That covers whether the Full Faith & Credit clause requires states to respect contracts that conflict with the state’s own public policy, and I agree that it has been the consistent tradition NOT to require states to recognize marriages that would be illegal under their own laws. Texas has never been required to recognize a first-cousin marriage that was legal in VT but illegal under TX law.
But then on what authority does the federal government refuse to recognize marriages that ARE legal in the states where they are contracted? The federal government has to recognize all the first-cousin, 16-year-olds’ marriages that are legal in the various states. The one kind of marriage the federal government has refused to recognize that is legal in a state is same-sex marriage. Why is SSM singled out for different treatment by the federal government, when the first cousins in VT get their marriage recognized by the feds?
Nice post and blog! Greets.