Op-ed: Exploring the Uncomfortable Difference Between Cuomo and Obama
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.