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Obama's Vows on Marriage Print E-mail
By Hadley Arkes   
Monday, 22 June 2009

What is Barack Obama’s position on same-sex marriage? It is governed by the same principle that applies everywhere else in his style of governance. It may be rendered more exotic in the Italian: Dica una cosa, ma faccia un altro. In plain Chicago-speak it runs, “Say one thing, but do another.”

On the matter of marriage, he is emphatically in opposition to same-sex marriage. But he will do nothing to defend marriage. The Defense of Marriage Act was passed in 1996 for the sake of insisting that, in federal law, a “marriage” is defined only as the legal union of a man and a woman as husband and wife. Obama professes his devotion to marriage as we know it, and yet he has also pledged that his administration will seek to repeal the Defense of Marriage Act or have it overturned.

The president’s reigning principle was on display again last week as he summoned a gathering at the White House to stage a showy move on behalf of gay rights. He would seek to extend, to couples of the same sex in the federal service, the same kinds of benefits that are available to couples who were legally married. Well, not exactly everyone in the federal service, for as Obama recognized, he can act only as federal law permits, and the Defense of Marriage Act bars any recognition of a marital union other than that of a man and woman.

And so he narrowed his focus to the Department of State. He charged that department with the task of considering whether some of the benefits available to married people – e.g., taking instruction in a foreign language – could be made available to “domestic partners” of the same sex. But once again, the qualification was to consider whether any such extension of benefits could be “consistent with Federal law.” He would then ask other departments in the Executive to take on the same limited, and limp mission.

For the answer to the question, Obama already knows. Even he cannot confer marital status on couples of the same-sex. And yet even more than that, it is not clear that he can establish “domestic partners” as a legal category. What he signed on June 17 is a memorandum, not an executive order drawing its authority from any statute. As he himself acknowledged, his memorandum “does not, create any right or benefit, substantive or procedural, enforceable at law or in equity.”

The Congress could enact a definition of “domestic partnership” through the usual flexing of the “positive law,” the law that is merely posited or enacted in any place. But the very logic of marriage keeps generating some unsettling questions and posing some gentle barriers.

For example, how would we know that two men are “domestic partners?” Could I simply register myself and another friend, say, for this year or this season, and renew the registration, perhaps with another friend next season? Or would the relation have to be something more permanent, with more of a commitment; preferably a commitment made firm in the law, a commitment that would take some exertion to dissolve? That is what marriage provides, but other relations have to mimic.

Might the equivalent be supplied if two men buy property together, give each other privileges of visitation in the hospital, make each other heirs under their wills? But of course, that can be done now without marriage, a point that keeps befuddling the people who insist that gays need marriage in order to have these benefits. And they keep insisting that these benefits are not enough. They want the moral stamp that comes with the word marriage itself.

I have been married for forty-eight years, but might I still register as a domestic partner with one of my friends who is working for the government? Or with a few of them in separate twosomes? If a domestic partnership is not a marriage, why should my marriage pose a hindrance? The laws on bigamy cannot come into play. After all, I can be married to my wife and be a partner in a business or a member of several associations, sharing obligations with others. What principle of “domestic partnership” confines the relation to two people and only one set of two people?

If a domestic partnership is not a marriage, many possibilities should be open. It is that Defense of Marriage Act that keeps getting in the way. Well, we could ask Congress finally to repeal it. But that is a vote that the Obama Administration is clearly not anxious to have, for it would imperil those Blue Dog Democrats who made it into office with the profession that they were pro-life and not inclined to undo traditional marriage.

And so what is Obama’s position on marriage? He is for traditional marriage, but will not defend it. He is for same-sex couples, he is against the Defense of Marriage Act, but he will not press for its repeal. Dica una cosa, ma faccia un altro. The truth? He is for same-sex marriage, but he will do what Democrats have done for thirty years: He will rely on the courts to put across the parts of the liberal agenda that liberals will not campaign for in public. He waits for Sonia Sotomayor and the judges he will appoint in the fullness of time.


Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and is one of the architects of the Defense of Marriage Act.
 

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Comments (8)Add Comment
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Lex dubia non obligat!
written by Willie, June 23, 2009
Excellent article. Hadley Arkes portrays how the Supreme Court has been politicized and for 30 years has danced to the tune of a leftist, Godless liberal agenda. Our Founding Fathers did not intend for the judiciary to be both executive and lawmaker. The judiciary is not a substitute for God and King but has become just that. It has little respect for those unalienable rights, but only for "positive law." We are in a cultural war now, because again the courts have forgotten the right to life
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Comment
written by David, June 23, 2009
This a smokescreen for the difficult human (not sexual) questions posed by gay relationships, which always have and always will exist. Surely, as a professor at an Eastern liberal arts school, you must know gay couples in long-term (48+ years, perhaps?) relationships. Are you prepared to deny them visitation rights in the hospital? Economic security in retirement? Dick Cheney, Ken Starr, Ted Olson and others have realized that such arguments are hollow.
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Marriage threatened?
written by Joanna, June 23, 2009
If the federal government's laws are your first line of defense in resisting bigamy in your 48 year marriage, my advice is this: Get thee to a marriage counselor. Quick.
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Correction
written by David, June 23, 2009
I mistakenly cited Ken Starr in my earlier comments. He defended Prop 8 in California.

I meant to cite Steve Schmidt, who ran McCain's presidential campaign, and who has argued that Republicans drop their objections to gay marriage.
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...
written by Kevin in Texas, June 23, 2009
Excellent article, Professor Arkes! Some very pertinent and obvious real-life examples of the legal and social difficulty that same-sex marriage could present if it were legally recognized by the state.

David, I think it's important to note that most of those conservatives who now support the legalization of same-sex marriage have not given any real legal or moral defense of it, but have rather resorted to emotional appeals and blatantly to political ones like "will help win votes!"
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To Kevin
written by David, June 24, 2009
Cheney's position, like many, is informed by real life experience, not politics. I don't support gay marriage, but I also don't believe in pretending gay people/relationships don't exist. They always have/will. The only difference now is that people are honest. Granting certain contractual rights (e.g., the right to be in a hospital ER) just treats gay people with basic dignity/respect. My moral basis? The Golden Rule. President Obama has it just about right.
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...
written by Jonathan, June 24, 2009
David: People can, without marriage, "give each other privileges of visitation in the hospital" and "make each other heirs under their wills"--as Dr. Arkes plainly points out in his essay. And he does not even begin to suggest that such legal arrangements should be denied to people simply because they are practicing homosexuals.
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...
written by a.mait, June 30, 2009
Our leader is the King of Doubletalk ....

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