Obama has gotten one individual liberty issue right


Call it a case of the proverbial broken clock being right twice a day. President Obama has been terrible on most liberty issues, of course. He came into office promising a hands-off approach to medical marijuana states, but his DEA and FBI have kept the pace of the Bush administration on clinic raids. He has proposed and supported restrictive gun regulations, though his infamous “executive actions” didn’t end up amounting to all that much.

The myriad Obamacare mandates are egregious violations of individual and organizational liberty. But there’s one area where Obama has gotten it exactly right, or at least as well as can be expected from a modern President: individual rights for gay Americans.

While he campaigned as an unapologetic progressive, Obama went through almost his entire first term still claiming to be personally opposed to same-sex marriage. He has also been criticized by many activists for not instituting an executive employment non-discrimination order that would apply to LGBT federal employees. On every other issue, though, President Obama has been the gay community’s BFF.

Obama’s administration publicly opposed the Defense of Marriage Act (DOMA) signed by President Clinton and declined to defend the constitutionality of the law as it worked its way through court challenges. He also opposed the (also Clinton-era) Don’t Ask Don’t Tell policy as it was also challenged in court. Congress repealed that provision itself in 2010, and Obama signed it into law, effectively allowing LGBT men and women serving our country to do so openly, once the military certified the law the next year.


While those were huge steps forward for executive leadership on the liberties of gay Americans, it wasn’t until halfway through the last year of his first term that the gas pedal was pushed to the floor. On May 9, 2012, President Obama finally declared his public support for marriage equality. While this didn’t legally change anything, it signaled a huge shift in tone for his administration and the country, and foreshadowed what would become the lightning fast acceleration of the freedom to marry at the state level.

The day before Obama made his announcement, North Carolina passed a ban on same-sex marriage. While he was criticized for not publicly opposing that ban before it passed, Obama said its passage was the main catalyst for his announcement. As of that day, there were only six states that recognized same-sex marriage (MA, IA, VT, NH, CT, NY). As if in mutual reinforcement, on the day he was re-elected a few months later, Maryland, Washington, and Maine voted to be added to that list. Over the first year of his second term, seven more states would either vote for or have court rulings recognizing the freedom to marry. Utah and Oklahoma have received similar rulings that are still being appealed by those states as of this writing.


While the list of states with legal same-sex marriage was in the process of more than doubling in 2013, in June the Supreme Court effectively overturned California’s Prop 8 ban by sending it back to a lower court where there were no plans to re-try it, and declared part of DOMA unconstitutional. This added California to the swiftly increasing list of marriage equality states, but also made it much easier for courts to add others by invalidating the DOMA provision that restricted the definition of marriage for federal purposes. That ruling was cited in both the Utah and Oklahoma pending rulings.

The pace of LGBT liberty and equality isn’t looking to slow down this year either. Obama’s Department of Justice decided just this week to give full parity to same-sex couples in federal matters. That means that for federal prison visitation, surviving spouse compensation, joint bankruptcy, and every other DOJ and federal court related issue, all spouses have the same rights, regardless of state recognition. With the Utah and Oklahoma court cases and even more potential Supreme Court rulings on the issue looming, President Obama’s second term looks like it will be just as fruitful, if not more, for the individual rights of non-heterosexuals as his first.

It is difficult or those of us on the right to read such glowing praise of such an otherwise divisive president (how do you think I felt writing it?), but in my opinion, if we are to be effective and honest intellectual opponents of President Obama in particular and liberalism in general, we have to acknowledge when they get it right. And he definitely has on the liberties of gay Americans. We must also acknowledge when our side gets it wrong. This blog is certainly no stranger to criticizing Republican foot-in-mouth disease. But what about specifically the issues of gay rights? How might things had been different if we had beaten Obama instead?


If Mitt Romney had won in 2012, just a few months after Obama declared his support for same-sex marriage rights, would his election be seen as a defeat for those rights? More generally, would we even have any idea how a Romney administration would have handled the various gay rights issues that cascaded down from the several states since 2013? Romney ran for governor in Massachusetts in 2002 as a “progressive” gay rights champion. He took no action after a court ruling made Massachusetts the first state with full marriage rights for same-sex partners that same year.

Then in 2012, Romney ran for president as a “severe conservative” completely opposed to almost any kind of equal rights progress for LGBT citizens, other than a tepid equal opportunity statement. Would a President Romney have “flip-flopped”, as we all would have expected him to generally, and supported gay rights as they came up under his administration? We will never know.

Even further back, if McCain had won in 2008, would we have made this much progress on gay rights in just a few short years? McCain publicly supported DADT and DOMA (and still does!). His administration probably would have defended DOMA in the courts, unlike the Obama administration, whose principled abdication of that responsibility led House Republicans to defend it on their own. McCain probably would have nominated conservative Supreme Court justices instead of Sotomayor and Kagan, or perhaps Stevens and Souter might not have retired rather than give him the opportunity. The outcome might have been the same, but the tone would have been completely different.

And as the modern presidency has become very important, not for its famous “bully pulpit”, but for its role in setting the tone of American public discourse, President Obama should be commended for his. Whether it’s a cynical demographic political calculation, an honest ideological position, or a simple emotionally sympathetic response, Obama has made this a better country for the liberty of LGBT Americans, and by extension the liberty of all of us. We’ll take what we can get.


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