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Wedding Jitters

Wedding Jitters


Will the California supreme court decision legalizing same-sex marriage become a wedge issue in this year's presidential race, just as the similar Massachusetts ruling did in 2004? Lambda Legal attorney Robert Schulze examines the positions Barack Obama, Hillary Clinton, and John McCain have taken regarding the federal Defense of Marriage Act and how it might all play out this fall.

Last Thursday the California supreme court, by a thin 4-3 majority, delivered its much-anticipated opinion striking the state law banning same-sex marriage as unconstitutional. Although same-sex marriage has taken a backseat to hot-button issues such as gasoline prices, Iraq, and the housing market during the presidential election, the decision in California may place the issue of same-sex marriage at the forefront of voters' minds. While none of the front-runners supports same-sex marriage, Barack Obama, Hillary Clinton, and John McCain all hold different views on the 1996 Defense of Marriage Act, which defines marriage for federal purposes as "a legal union between one man and one woman" and allows states to refuse to recognize same-sex marriages sanctioned by sister states. Specifically, McCain wants to keep DOMA intact, Obama favors repealing the law, and Clinton wants to roll back part of it. With California's recognition of same-sex marriage, the ruling and its applicability to other states may be used as a wedge issue among the candidates --particularly between McCain and the eventual Democrat nominee.

McCain supports DOMA in its current form, but he does not seek to deny marriage rights for lesbians and gay men across the board. While in the Senate, McCain opposed the Federal Marriage Amendment, which sought to ban same-sex marriage across the nation and in all the states. At the same time, in 2006, McCain supported a proposed amendment to Arizona's constitution that not only sought to deny gays the right to marry but to deny unmarried couples governmental benefits. These positions suggest that McCain believes that the sanctioning of same-sex marriage is an issue for the states to determine, one way or the other, on their own. Couple this with the fact that McCain is trying to appeal to moderate voters, and you have to conclude that he is unlikely to expend much political capital on the decision.

Clinton's position is similar to McCain's. She favors repealing the section of DOMA that defines marriage as a union between a man and a woman under federal law but favors keeping intact the section that allows states to refuse to recognize same-sex marriages from other states. Therefore, under Clinton's plan, a same-sex couple married in California would not be barred outright from receiving federal benefits conferred on the married. Nor would other states have to recognize the marriage. The import of this position is that Clinton too believes that each state on its own must decide whether to sanction gay marriages. With this view, Clinton is not likely to come down against the California decision -- even if she personally does not favor same-sex marriages -- because the state decided it on its own.

Obama seeks to repeal DOMA in its entirely -- which sets him apart from Clinton and McCain in one significant way: If the statute is repealed altogether, a same-sex married couple moving from California to another state, for example, could seek to have their marriage recognized in their new home state. In short, a full repeal potentially allows for same-sex marriages in states that do not sanction the unions in this form.

How does this affect the election if he is the candidate? In 2004 some Democrats, like California senator Diane Feinstein, blamed election losses on the same-sex marriages that occurred that year at San Francisco City Hall (the very marriages reviewed by the California supreme court). According to the argument, those marriages energized conservatives to place initiatives on ballots in various states prohibiting marriages between gay and lesbian couples and drew out the conservative vote. But in 2008 the political landscape is different. A majority of states now have language in their constitutions or legislation on their books defining marriage as a union between a man and a woman. Nonetheless, because Obama's position allows for gay marriage to expand across states -- while McCain and Clinton seek to contain such marriages to those states permitting them -- he will necessarily have to defend the California decision as applied to other states, threatening his electability, according to the Feinsteins of the world.

Indeed, Clinton seems to have made the realpolitik calculation that no presidential candidate can get far with a plank that allows for national marriage rights. Bill Clinton, during an interview with MTV, defended his wife's position on DOMA by posing the following rhetorical questions: "Do you believe that there will be more or fewer efforts to ban gay marriage constitutionally around the country if a Massachusetts marriage has to be sanctified in Utah?" Or "Will there be more or fewer gay couples free of harassment if the law is that every gay couple in America could go to Massachusetts and then have to be recognized in Utah?" In the Clintons' mind, an open endorsement of marriage rights is a bullet to the campaign.

Unfortunately, the Clintons might be right. Even though neither McCain and nor either of the Democratic candidates support same-sex marriage, conservatives are already arguing that a vote for McCain is a vote against purportedly "activist" judges like those on the California supreme court. (Ironically, six of the seven justices on the California supreme court are Republican appointees.) If the same-sex marriage debate takes center stage this election cycle, it therefore appears that it can only benefit McCain and hurt the Democrat nominee. This is even truer if Obama is the nominee because he will be placed in the awkward position of defending the decision's application to other states, although he has explicitly stated that he is against same-sex marriages. In the end, the California supreme court's decision may force a de facto national referendum on same-sex marriages.

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Robert Schulze