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View From Washington: No Change

View From Washington: No Change

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The White House was desperate not to make news this week about the president's position on same-sex relationship recognition.

"The president does oppose same-sex marriage but he supports equality for gay and lesbian couples in benefits and other issues," David Axelrod assured Savannah Guthrie and Chuck Todd on MSNBC the morning after Proposition 8 was overturned. "He supports civil unions and that's been his position throughout, so nothing has changed."

Nothing has changed... or so Axelrod hopes.

But the 138-page decision from judge Vaughn Walker was the third ruling this summer from a federal district court to find that arguments against equal rights for same-sex couples didn't even pass the rational basis test - in other words, the judges could find no conceivable legitimate reason for the government to deprive LGBT couples of access to marriage and/or the rights associated with it.

Walker's decision flat out declaring the Proposition 8 ballot measure unconstitutional was far more sweeping than judge Joseph Tauro's finding that the 3rd section of DOMA violated the U.S. Constitution - that's the section that prohibits the federal government from recognizing state sanctioned same-sex marriages.

Walker made 80 findings of fact that swept away every last vestige of unfounded homophobic rationale for circumscribing marital rights to heterosexual couples: that same-sex relationships are fundamentally inferior, that gays and lesbians are perverted, that marriage must institutionally support procreation, that LGBT parents are unfit, that affording marriage equality will harm heterosexual couples.

Every legal scholar I spoke to said that the intensely thorough nature of the analysis and conclusions drawn have provided a body of evidence that will be profoundly difficult for future judges to ignore.

Tobias B. Wolff, a constitutional law professor and former LGBT adviser to the Obama '08 campaign, called the findings "breathtaking." Jenny Pizer, Marriage Project director of Lambda Legal, said it was "deeply satisfying" to have a federal judge pick apart the entire basis of the antigay movement.

Naturally, as cautious lawyers go, neither of them considers anything inevitable nor did they express confidence that the worm had turned for good, so to speak.

"We do tend to have these cycles - it's not a single vector in one direction," Pizer said.

Indeed, Wolff noted that these cases are only reaching the federal courts now because civil rights lawyers had intentionally been bringing them at the state level heretofore.

"They were justifiably concerned about what the Supreme Court would do if they got their hands on one of these marriage cases," he explained. "Even with Elena Kagan confirmed this will still be the most conservative Supreme Court in the last 50 years."

Nonetheless, the fact that federal districts courts are now addressing marital rights and have begun to build a body of findings that deems antigay arguments baseless puts this issue on the national map in a new way. Or as Pizer put it, "It is quite strikingly a new chapter in the work of trying to protect same-sex couples."

The notion that the White House even commented on the ruling was a sign the administration understood that new and important ground was being broken. But the president is entering a new political vortex now on same-sex marriage that he and his cohort seem, perhaps predictably, impervious to.

Witness the statement they sent out to reporters who inquired: "The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans."

While it's somewhat of an intellectual oxymoron to suggest that the president's continued support for civil unions advances "equality," I will avoid getting bogged down in that quagmire for the moment.

But as a friend lamented over gchat Wednesday night, "They forgot to say something that actually meant anything."

Precisely! The statement references Obama's past position on the measure, which was mainly registered in a letter he sent to San Francisco's local Stonewall Democratic Club. It's one of the oldest political tricks in the book -- restating a former position specifically as a way to signal that you're not making news and your original position suffices.

But like it or not, the world is progressing without them and their 2007 stance on marriage equality may not seem as fresh in 2011 when the Proposition 8 case could very well be heard by the Supreme Court even as 2012 campaigning ensues.

In 2007, both Hillary Clinton and Barack Obama backed civil unions without much consequence because people argued it would be political suicide for them to do anything else. But Richard Socarides, former LGBT adviser to President Bill Clinton, believes the three rulings in total will elevate the issue for voters from being a mere matter of political posturing to being one of moral conscience.

"You will no longer be able to say, 'I'm for full equal rights but I'm not for gay marriage,'" he said. "If it wasn't already, this is going to become the central civil rights question in the federal courts over the next several years and you either are going to be for it or it against. I think people are going to be judged by that standard."

And for the Obama administration, the inconsistencies abound and only stand to grow with time. Let's remember that Axelrod said the president "opposes" marriage equality, which is actually one step further than just reminding people that he supports civil unions.

Here's a sampling of their dilemma: Explain how the President denounces Proposition 8 but doesn't favor the marriages that would be allowed if it were overturned; why he believes DOMA should be repealed and supports full federal benefits for same-sex couples but he doesn't support the marriages that will afford that type of federal recognition.

And then there's the idea that the president continues to "promote equality for LGBT Americans" even as he opposes same-sex marriage and supports a separate-but-unequal alternative.

It makes one wonder if it's possible to tie yourself in so many knots that you eventually lose the capacity to loosen the strings.

Obama backers surely think I am unfairly flogging the president by now, but like it or not, the dissonance will only deepen if the administration digs its heels in over the next couple years. This debate is not diminishing but rather it is growing in stature. Surely, there will be bumps along the road for equality advocates, but if this case reaches the Supreme Court, the White House will face a conundrum of epic proportions.

Do they wait for a decision from the Supreme Court in order to reconsider their position and risk being on the wrong side of history? Do they willingly provide political cover for a court that could potentially decide against the right of same-sex couples to marry? Do they prioritize the view of conservative voters over that of their progressive base (because I am here to tell you that independent voters don't list marriage rights as one of their top three concerns)?

Whatever the administration does will likely be motivated by what makes them the least uncomfortable. For the moment, they have sent the message that maintaining the status quo is less scary than evolving toward equality.
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