Thursday, June 30, 2011

Editorial Pic-toon: BozObama Speaks on Marriage

Don't get me wrong, I am a supporter of the President, but when he is wrong . . .

In 1996, when running for the Illinois state senate from a district on the south side of Chicago (according to the Jim Croce song, the "meanest part of town"), Barack Obama strongly supported same-sex marriage, writing in a letter to Chicago's LGBT newspaper:

"6) I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages."

I grant that he was running for a state position, and that this is not inconsistent with his current statement that he sees the issue as a states' rights issue, but when he was running for president, and even now, he has also back-tracked, de-evolved, so to speak, and now only supports civil unions.

His current statement about mariage being a states' rights issue, is largely a correct one if one is speaking solely about the ordinary regulation of the various bundles of rights associated with marriage - but what he fails to take into account is that when the states run afoul of the federal constitution in regulating marriage, the federal government can step in and enforce the constitution.

There have been a good number of federal cases along these lines, most notably the Supreme Court decision in  Loving v. Virginia (388 U.S. 1 (1967).  The right to marry is a fundamental civil right.

In his dissent in Lawrence v. Texas, (539 U.S. 558 (2003), Justice Antonin Scalia, no friend to the LGBT community, points out the the court's decision to hold anti-"sodomy" laws unconstitutional would inevitably lead to the court recognizing the fundamental connubial right to marry for same-sex couples:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

The current Prop 8 case wending its way through the federal courts will test whether Justice Scalia's words are prophetic. Just as Lawrence followed the SCOTUS elimination of the racial "separate but equal" concept in Brown v. Board of Education (347 U.S. 483 (1954)), so it is that the Prop 8 case can follow Lawrence. Justice Scalia is not likely to be on the right side of this one, either, but one can always be pleasantly surprised.

President Obama, of all people, should recognize the federal constitutional implications of the right to marry.  Not only is he a law professor by profession, a brilliant man in many respects, he is also the son of an interracial couple who at the time he was born could not get married in more than 18 states - because of people maintaining a "states' rights" position on the subject of their connubium. In 1967, the SCOTUS held otherwise on connubium for interracial couples.  It is likely that a fair and just Court will do he same for the issue that the connubium right to marry must be understood on a gender-neutral basis under bedrock federal constitutional principles.

I'd like to share a quote from a sermon by the Rev. Theodore Parker, a Unitarian minister and Abolitionist leader, which was the inspiration for a similar quote attributed to Dr. Martin Luther King, Jr.:

"I do not pretend to understand the moral universe; the arc is a long one, my eye reaches but little ways; I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. And from what I see I am sure it bends towards justice."

- "Of Justice and the Conscience" (1853)

 I support President Obama in his presidency, even though I disagree with him on this and a number of other critical issues.  Despite those disagreements, he remains the most qualified candidate in the field for the 2012 election. Not a single Republican currently in the hunt for the Republican nomination is qualified for the presidency.  Not one. I am hoping that President Obama evolves on the issue of marriage and these other critical issues.  His second term will provide him with his legacy.  Will he be wearing a clown nose all that often?  (At least he doesn;t wear it all the time, like his anticipated opponents).

Looking toward 2016. In the meantime, I'm also seeing a strong Democratic candidate emerging for the 2016 presidential election - New York Governor Andrew Cuomo.  In his first year in office as Governor, he has pushed an amazing package of bills through what is perhaps the most dysfunctional state legislature in the nation.  And his popularity was recently reported at 64% in New York, higher than any other governor, including the Republican I expect will be Mr. Cuomo's 2016 opponent for the presidency, New Jersey's Chris Christie.

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