The California decision and the presidential campaign

There are few signs of a major electoral backlash against the California Supreme Court's decision legalizing gay marriage, but the court's opinion leaves Democrats exposed.

Published May 15, 2008 11:28PM (EDT)

Given that the California State Supreme Court's decision to overturn the state's ban on gay marriage comes in the middle of a presidential election year, the ruling could potentially have major implications for the campaign. But for the moment, the political world is fairly quiet, and statements from the three presidential campaigns -- as well as additional comment to Salon provided by Barack Obama's campaign -- seem to indicate that, for the moment at least, the major players in the upcoming presidential race would like to stay away from the issue.

Republicans have, in the recent past, used court decisions like this one -- and subsequent initiatives and referendums at the ballot box -- to motivate their party's base to come out and vote. They'll most likely try the same thing in California. A coalition opposed to gay marriage had, even before the decision, already submitted more than 1.1 million signatures in favor of putting an initiative on California's ballot this November that, if passed, would amend the state's constitution and override this decision. But the actual value Republicans could gain from doing this in a state like California, which is dependably blue when it comes to voting for a president, seems small. And there'll be little chance to use the California decision effectively elsewhere: There are only so many times you can have voters decide these sorts of questions, and most of the key swing states have had similar measures on their ballots during one important national election or another this decade.

Presumptive Republican nominee John McCain could use some support with his party's social and religious conservatives, and could conceivably make a play on this issue in hopes of bringing them more firmly into his campaign. But, as of right now, there's no indication he will end up doing so. On Wednesday, previewing the likely political effects of the then-impending ruling, the Atlantic's Marc Ambinder wrote, "McCain, as you'll recall, opposes the Federal Marriage Amendment on federalism grounds but has hinted that he might change his mind if state courts start overturning people-initiated decisions on gay rights." Thursday's decision did in fact overturn a law voted on directly by the people of California, offering the McCain campaign its opening, but its response was tepid. In a statement, McCain spokesman Tucker Bounds said, "John McCain supports the right of the people of California to recognize marriage as a unique institution sanctioning the union between a man and a woman, just as he did in his home state of Arizona. John McCain doesn't believe judges should be making these decisions."

Ultimately, the major political effect might be that it paints Democrats -- and especially Barack Obama, who's looking more and more like the party's eventual presidential nominee with every passing day -- into a very tight corner. Public opinion is shifting fairly quickly on the issue, but supporting same-sex marriage is still seen as deadly to a candidate's political aspirations. In a March 2007 Newsweek poll, 38 percent of respondents said that, by itself, a presidential candidate's strong support for same-sex marriage would cause them to vote against that candidate. Civil unions, however, are relatively popular -- or at least not dramatically unpopular -- and have come to be the preferred alternative for many politicians, including Obama and Hillary Clinton.

The problem is in the way some Democrats (and on this issue, especially Obama) have justified their support for civil unions but not for same-sex marriage. The "gay debate" that LGBT advocacy group Human Rights Campaign sponsored in August 2007 exposed the rhetorical and logical holes in some of those justifications, and Thursday's ruling only opened those holes further by saying that civil unions do not really provide equality under the law. Though he referred specifically to conservatives, in a post he wrote Thursday, at right-wing blog Hot Air the blogger "Allahpundit" did a good job of summing up the problems inherent in arguing for civil unions instead of same-sex marriage:

[I]t leaves you with no substantive reason for drawing any distinction in the first place. Yes, (some) conservatives seem to be saying, gays can go ahead and have civil unions that grant them all the benefits married couples have -- but for god's sake, don't let them call themselves "married." To which a court can only reply, "Why not?"

Obama's had a difficult time explaining his answer to that question. At the debate, he said, "[I]t is my strong belief that the government has to treat all citizens equally. I come from that in part out of personal experience. When you're a black guy named Barack Obama, you know what it's like to be on the outside. And so my concern is continually to make sure that the rights that are conferred by the state are equal for all people... my view is that we should try to disentangle what has historically been the issue of the word 'marriage,' which has religious connotations to some people, from the civil rights that are given to couples."

That provoked a question from HRC president Joe Solomonese, who -- referencing the landmark Supreme Court decision Plessy v. Ferguson -- asked Obama, "On the grounds of civil marriage, can you see to our community where that comes across as sounding like 'separate but equal'?" The senator responded:

Well, look, you know, when my parents got married in 1960, '61, you know, it would have been illegal for them to be married in a number of states in the South.

So obviously, this is something that I understand intimately, it's something that I care about.

But I would also say this, that if I were advising the civil rights movement back in 1961 about its approach to civil rights, I would have probably said it's less important that we focus on an anti-miscegenation law than we focus on ... all the legal rights that are conferred by the state...

[A]s I've proposed it, [civil unions] wouldn't be a lesser thing, from my perspective. And look, you know, semantics may be important to some. From my perspective, what I'm interested is making sure that those legal rights are available to people

The California Supreme Court's opinion specifically rejected this sort of argument. Chief Justice Ronald George wrote:

Whether or not the name 'marriage,' in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes -- by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership -- pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry. As observed... at oral argument, this court's conclusion in [a previous case] that the statutory provision barring interracial marriage was unconstitutional undoubtedly would have been the same even if alternative nomenclature, such as "transracial union," had been made available to interracial couples...

[B]ecause of the long and celebrated history of the term 'marriage' and the widespread understanding that this term describes a union unreservedly approved and favored by the community, there clearly is a considerable and undeniable symbolic importance to this designation. Thus, it is apparent that affording access to this designation exclusively to opposite-sex couples, while providing same-sex couples access to only a novel alternative designation, realistically must be viewed as constituting significantly unequal treatment to same-sex couples....

Second, particularly in light of the historic disparagement of and discrimination against gay persons, there is a very significant risk that retaining a distinction in nomenclature with regard to this most fundamental of relationships whereby the term "marriage" is denied only to same-sex couples inevitably will cause the new parallel institution that has been made available to those couples to be viewed as of a lesser stature than marriage and, in effect, as a mark of secondclass citizenship.

The Obama campaign has released a statement on the decision. It reads, "Barack Obama has always believed that same-sex couples should enjoy equal rights under the law, and he will continue to fight for civil unions as President. He respects the decision of the California Supreme Court, and continues to believe that states should make their own decisions when it comes to the issue of marriage." Salon asked an Obama spokesman for additional comment regarding the contradiction between the sentiment expressed in the first sentence of that statement and the court's decision; via e-mail, the spokesman said only "[Obama] continues to believe that states should make their own decisions when it comes to the issue of marriage."

As for Clinton's position on the issue, this is one situation in which her reputation for being calculating and nakedly political could actually make her campaign's job easier. In some ways, her logic on the question is as confused as Obama's. But at that debate, she was at least honest about the situation, essentially admitting that one reason she supports civil unions, and not marriage, is because the former is politically feasible. (It's hardly a wonderful position, but it's an easier one for the campaign to defend, as it avoids the logical twists and turns Obama might have to make if faced with this issue on the trail.) Asked for reaction to the California decision, the Clinton campaign provided Salon with a statement that reads:

Hillary Clinton believes that gay and lesbian couples in committed relationships should have the same rights and responsibilities as all Americans and believes that civil unions are the best way to achieve this goal. As President, Hillary Clinton will work to ensure that same sex couples have access to these rights and responsibilities at the federal level. She has said and continues to believe that the issue of marriage should be left to the states.

By Alex Koppelman

Alex Koppelman is a staff writer for Salon.

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