All Rights reserved
COMMENTARY: Barack Obama could turn out to be America's first gay president. Many of us thought it would have been Bill Clinton. It wasn't. Excepting James Buchanan, our 15th and only never-married president, and Abraham Lincoln, who was rumored to have shared his bed with a male friend for reasons of economy and warmth, it's beginning to look as if Barack Obama may be it.
Nobel Prize-winning author Toni Morrison dubbed Bill Clinton "the first black president" back in 1998. The first gay president may be the closeted Obama, who has stealthily hidden a very progressive gay rights agenda behind garments made of compromise and incrementalism. But now he's stepping out. According to Andrew Sullivan in a recent Atlantic article, "He is coming through -- more cunningly than most of us grasped."
Two weeks ago, Atty. Gen. Eric Holder announced that the Justice Department will no longer defend antigay legislation passed by Congress and signed into law in 1996 by President Clinton. It was a bold move with little precedent.
According to the attorney general, both he and President Obama concluded that at least part of the Defense of Marriage Act is unconstitutional. At issue is the third section, which denies federal benefits to gay and lesbian couples married in states that recognize gay unions.
The decision came in part because of the marriage and death of Thea Spyer. Back in 1963, Spyer met and fell in love with Edith Windsor. The two went on to build a life together for over four decades, each wearing a pearl pin in place of a ring, so as not to give away their often-secret relationship. Finally, after a 40-year engagement, they were married in Canada.
Two years ago Thea Spyer died, where they lived, in New York State, leaving her estate to her wife, Edith Windsor. Though gay marriage is not legal in New York, the Empire State does recognize legal same-sex unions performed in other states, territories, and nations. The federal government, however, does not.
Spyer's death not only brought an end to their 46-year relationship, it also brought a federal tax bill of $363,053. Windsor would have been exempt had she been married to a man.
Though Windsor, in good faith, paid the tax and honored the law which kept the federal government from recognizing her marriage, she decided, at age 81, to challenge it. "I couldn't believe that our government would charge me $350,000 because I was married to a woman and not a man," she said
According to Holder, for the federal government to recognize heterosexual civil marriages but not homosexual civil marriages in the very same states "violates equal protection rights under the Fifth Amendment."
It's a battle that Holder and the president seem willing to take on.
Congress can challenge the president's decision and defend section 3 of the Defense of Marriage Act, and House speaker John Boehner has announced he will do just that, saying, "The constitutionality of this law should be determined by the courts -- not by the president unilaterally -- and this action by the House will ensure the matter is addressed in a manner consistent with our Constitution."
But it puts Speaker Boehner in a difficult position. The speaker called the president out, accusing him of taking the focus off jobs. In truth, however, it is members of Boehner's own party who are intent on pushing the anti-gay marriage agenda and codifying the principles of the Defense of Marriage Act into the U.S. Constitution. The Christian right may want it, but Boehner likely doesn't.
Moreover, for Boehner, challenging the specifics of the president's decision, as it applies to the case of Thea Spyer and Edith Windsor, would be to argue in favor of the estate tax for gay and lesbian couples. For a politician who's made a career out of opposing taxes, and specifically the so-called death tax, that may be a very difficult thing to do. It's also not the sort of position he likely wants to find himself in.
Obama has painted Boehner into a corner. Taking on this issue would likely push Boehner and his party further and further from the "jobs" agenda Boehner had hoped to ride to another shellacking of the president in 2012.
Obama was a professor of constitutional law and certainly realizes that the legal framework the American flag is draped on has everything to do with the shape we take as a nation. He seems to be shrewdly aware of this and intent on building a historic civil rights legacy supported by the courts.
The president is playing chess, and he is winning. In the end he knows he could win both the politics and the higher ground on this issue.
The president has had 25 months on the job. In spite of the doubts from the Left and criticism from the Right, he is moving forward at a pace that could be truly transformational if he is given eight years. For now, he's setting the groundwork for Congress to repeal DOMA or for the Supreme Court to rule it unconstitutional. Should that happen, federal recognition of gay marriage along with full faith and credit in all 50 states may turn out to be a reality in the America Obama leaves behind. In fact, it may be his endgame. If it is, he'll be hailed as the most progressive civil rights president since Abraham Lincoln.
Even more, he'll have become America's first gay president.