Immediately after the passage of marriage equality in New York the comparisons between Governor Cuomo and President Obama began. Andrew Cuomo promised to pass a marriage equality bill during his election campaign and fulfilled the promise just about six months after taking office—and with a Republican-controlled state Senate. Barack Obama dragged his feet on his campaign promise to end “don’t ask, don’t tell,” putting it off and acting only after being heckled at events and seeing protesters chain themselves to the White House gate. And on marriage he’s been “evolving,” in a process that seems to be taking longer than the actual evolution of sea creatures to land mammals.
Within hours of the comparisons came the debunkers, mostly defenders of the president. A governor, particularly one in a fairly liberal Northeastern state, they said, couldn’t be compared to a president of a diverse and fairly conservative country. Yes, Cuomo got four Republicans on board, but unlike Obama, he doesn’t have to contend with the filibuster, which means it requires 60 votes in the Senate to get anything done. Some of the defenders also argued that Obama’s “states’ rights” stance—his contention, made once again at a press conference shortly after the marriage vote in New York, that marriage is a state issue—is correct.
“Some now want this president to be Andrew Cuomo, a heroically gifted advocate of marriage equality who used all his skills to make it the law in his state,” Andrew Sullivan wrote on his blog on The Daily Beast. “But the truth is that a governor is integral to this issue in a way a president can never be. Civil marriage has always been a state matter in the U.S.”
But the debunkers are wrong, both about the states’ rights argument and in claiming that Cuomo and Obama cannot be compared.
Let’s start with states’ rights, a conservative principle that has been used to justify segregation and all manner of discrimination in this country, and goes back to slavery itself. Of course each state has its own marriage law, and those laws do vary from state to state. In most states one must be 18 years old to marry without parental consent, for example, but in Nebraska one must be 19, while in Georgia one can be 15, but only if pregnant. There are, in fact, many laws, not just those governing marriage, that states write and enforce differently from one another. Yet they all must conform, ultimately, to the U.S. Constitution, and many decisions have been handed down by the Supreme Court ordering that they do. When it comes to civil rights and equal protection — the Fourteenth Amendment to the Constitution — the states are held to a strict standard. The 1967 decision in Loving v. Virginia that ended bans on interracial marriages in the states was an example of the Supreme Court ruling that demonstrated the federal government’s interest in state marriage laws.
What is particularly glaring about President Obama invoking states’ rights is that, as a constitutional attorney and the product of an interracial marriage, he certainly knows it is a flawed and offensive argument, particularly with regard to civil rights. He’s also being enormously hypocritical. While pushing his crowning civil rights achievement thus far, health care for all Americans, the president argued the complete antithesis of states’ rights. Tea Party activists and Republican candidates, including Mitt Romney, who signed a similar health care law in Massachusetts with a mandate that all residents buy health insurance (which keeps the price affordable) or face penalties, claim that the federal government should not be placing a mandate on the states.
States, they say, should decide on their own if they want to take that approach. It’s a callous argument, particularly coming from Romney, who says he’s proud of the law the he passed in Massachusetts but basically believes that if Mississippi isn’t lucky enough to have a governor and legislators who see the wisdom of a such a plan, then that’s too bad for many of the people of Mississippi. No health care.
President Obama’s health care reform law, on the other hand, doesn’t allow states to opt out of the law or the mandate unless they replace it with something that will afford universal coverage. He sees health care as a right of every American and one that is a federal issue, not just a state issue, even though individual states will regulate health care differently, up to a point, just like marriage.
Yet Obama claims to see marriage the way Romney views health care: If the gay and lesbian people of New York are lucky enough to have a governor and legislators who will extend to them their right to marry, good for them. (The president actually called the New York law a “good thing” in the context of making the states’ rights argument during a White House press conference a few days after the law passed.) And if the gay and lesbian people of Nebraska are not lucky enough to have enlightened political leaders, too bad. No equal rights.
It’s hard to believe the president truly thinks that way. We know, in fact, from a questionnaire he filled out in 1996 — in which he claimed, as a state legislative candidate, that he supported marriage equality — that he doesn’t appear to see it that way at all. The White House has gone into contortions trying to explain the questionnaire since it surfaced in 2008 and still hasn’t come up with a straight answer, dismissing most questions by reporters and claiming the president supports only civil unions, not marriage. White House advisers continue to fall back on the states’ rights argument, something Obama and Hillary Clinton both made during the primaries, and on which most LGBT activists were willing to give them a pass at the time.
But now, with polls showing a majority of Americans supporting marriage equality and with New York making it mainstream, few activists will accept the argument any longer. The president has dug himself a hole, having thought the states’ rights argument was a way of saying there wasn’t much he could do as president on marriage. That’s backed by his comments at an LGBT Pride reception at the White House at the end of June: “I’ve met my commitments to the LGBT community. I have delivered on what I promised.” He’s saying his administration is no longer defending DOMA in court, and since there’s not much he can do legislatively on the issue since Republicans control Congress, that his job is done on marriage and he’s leaving it to the states. That analysis, however, completely ignores the power of the presidency, which is being used by our enemies who fight us on marriage equality by continually pointing to the president’s position.
This is in sharp contrast to Cuomo’s position, and it’s where the comparison between the two is absolutely justified. What either man can or can’t do with respect to his respective legislative bodies is not the point. This is about leadership. Andrew Cuomo stands up and says, I’m your champion and I’m going to lead. Obama says, I’m “evolving,” and rather than leading, I’m following the American people, the majority of whom now support marriage. Obama refuses to get out front. This is true on a variety of issues, from the stimulus package to protecting the environment—to health care too—where Obama has started out with the compromise position rather than going forth boldly with what he truly believes. He’s so afraid of losing that he pursues a strategy he perceives to be safe but which is ultimately weak.
That’s exactly what he’s doing on marriage right now. He believes his position will help him in battleground states (and, as some have said, he likely will change his position after the 2012 election). But the voters he is thinking about are already opposed to him for a variety of other pro-gay achievements—including dropping DOMA—and already believe he secretly supports marriage equality, no matter his claims. It can only help him to publicly come out in support because the base of his party will be energized. That is where Obama can learn much from Cuomo, who went full speed ahead and didn’t look back.