On a sunny Saturday last month, I crashed a fancy brunch on New York's Fire Island at the swank beachside home of Daniel Cochran and Greg Sutphin, a wealthy gay couple. They served lovely Bloody Marys and a giant spread of eggs and meats and assorted asparagus dishes prepared by a white-coated chef. The brunch was the 31st to be held in Fire Island's Pines community to raise money for Lambda Legal, the gay movement's litigation arm. At last year's brunch, cheers went up virtually every time Barack Obama's name was uttered. This time, when Lambda executive director Kevin Cathcart began to review the President's record on gay issues, he was greeted with steely silence.
That silence because it came from some of the most generous gay political donors in the country is key to understanding the confusing position the Obama Administration took this week on whether gays and lesbians should enjoy equal marriage rights.
Try to thread this needle: The President has stated his opposition to marriage equality many times. In fact, during his campaign, he pandered to African-American audiences a group that was already for him by inviting a black singer named Donnie McClurkin to perform at his events; McClurkin believes one's sexuality can be changed by praying to Jesus Christ. And yet Obama has also said he opposes Public Law No. 104-199, 110 Statute 2419, a 1996 bill (signed by President Clinton) that anti-gay forces called the Defense of Marriage Act, or DOMA. Obama has said several times that he would like that law overturned.
And yet sorry, the contradictions keep coming once Obama was elected, and once a gay couple in California had sued to overturn DOMA, his Administration not only defended the law, but defended it in a legal argument so reactionary that it would embarrass Dick Cheney (who, incidentally, is to the left of Obama on marriage). In that argument here's a PDF courtesy of Georgetown professor Nan Hunter Obama's lawyers noted that "courts have widely held that certain marriages performed elsewhere need not be given effect, because they conflicted with ... public policy." The examples the Justice Department offered: "marriage of uncle to niece," "marriage of 16-year-old," "marriage of first cousins."
That argument that two consenting adult men marrying isn't unlike a man marrying his niece led to the silence at that Fire Island brunch. And as I have pointed out before, Obama loves to raise political donations; he has plainly begun to worry about his standing among the rich homosexuals who used to fawn over him. As the New York Times' Adam Nagourney first reported, the California legal brief was one reason that a prominent gay supporter of Obama's went to the Oval Office in late June to express, for 15 full minutes, the gay community's deep disappointment.
And so this week we get a new legal brief from the Obama Administration in the California case, this one denuded of the execrable incest defense. This time (here's another PDF from Hunter), Obama flip-flops again now back to his campaign position. (It must be dizzying to work in the White House these days.) Now the Administration says it opposes DOMA and wants it overturned but that tradition dictates that it defend the law. And that is why, the White House said in a statement, "the Department of Justice has filed a response to a legal challenge to [DOMA], as it traditionally does when acts of Congress are challenged."
Legalistically speaking, the tradition argument is true, but it's yet another Obama dodge. The Administration could easily decline to defend the anti-gay law on discrimination grounds, just as the Administration of George H.W. Bush declined to defend federal laws setting a preference for awarding broadcast licenses to minority-owned businesses in 1990. The radical firebrand at the Department of Justice who successfully argued against defending those laws? A young DOJ attorney named John Roberts, who is now the Chief Justice of the United States. Clearly, Obama could have refused to defend DOMA if he had really wanted to. Georgetown's Hunter cites other cases in which the Justice Department has declined to defend laws, including one involving a minor cable-TV dispute. As Eugene Volokh of UCLA told me Aug. 18, there is nothing in the constitution or the law that would have prevented the Department of Justice from sitting on the sidelines in the DOMA case.
Nothing except politics. Obama's triangulation between left and right has become excruciatingly obvious on this issue, and he's not quite as deft a politician as Bill Clinton at keeping his left flank at bay. I wouldn't be surprised if, next summer at the 32nd Fire Island Pines fundraiser for Lambda, I hear booing when the President's name is mentioned.