Human Rights

Actions Speak Louder Than Words: How the Obama Administration Has Worked Behind the Scenes to Advance Marriage Equality

Ultimately, it's the courts that will ultimately make marriage equality the law of the land in all 50 states.

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The Obama administration has a pretty good record on LGBT issues, but it has also had a sometimes contentious relationship with gay rights activists.

Even in the wake of Obama's “evolution” on marriage last week, some critics seized on his statement that the states should decide whether to offer gay and lesbian Americans equal treatment under the law.

Yet it is only the courts – not the executive or legislative branches – that can require the states to honor same-sex marriages. And actions speak louder than words.

This week, Chris Geidner, senior political editor for the LGBT magazine Metro Weekly, appeared on the AlterNet Radio Hour to highlight where the administration has missed opportunities to advance gay civil rights, and to explain how the administration has been working to advance marriage equality nationwide in the courts – out of the glare of the political press. Below is a lightly edited transcript of the interview (you can listen to the whole show here).

Joshua Holland: Chris, we have folks like Rick Santorum running around blathering about how marriage has always been between a man and a woman and all that. Did you know that Professor John Boswell, the late chairman of Yale University’s History Department, discovered in ancient Christian liturgical documents that the church was performing same-sex marriages hundreds and hundreds of years back?

Chris Geidner: Yeah.

JH: I had never heard that.

CG: Professor Boswell has done a remarkable amount of work looking at the history of where the Christian religion has actually been on this issue.

JH: We had marriage equality back in the Dark Ages, it seems -- back in the 10th and 11th centuries. Now we’ve regressed greatly. Also if you go to the Kiev Art Museum there’s a painting which appears to show Jesus himself officiating over a marriage between two men. I did not know any of this.

CG: I definitely have not seen that.

JH: It’s fascinating stuff. Getting back to the present. This week Obama made huge news by coming out in favor of full marriage equality. Let me ask you, were you surprised by this move?

CG: I wasn’t surprised by the decision that he made. I think it’s been clear that we were really looking at a matter of when, not if on this issue. I think that clearly the vice-president’s eager words on "Meet the Press" this past weekend created a media situation that didn’t allow for the president to do this on his timeline. In order to get back to the topics that they want to be spending the election season on, they had to just get this done.

JH: And it's six months before the election, so it’s not going to be an immediate, salient issue. Some people say that Joe Biden had a carefully plotted-out balloon -- a trial balloon. I tend to think Joe Biden is famous for running off his mouth and got ahead of himself. What’s your take?

CG: I don’t buy the idea that it was a trial balloon. I think it always comes down to a tweet these days. It’s not follow the money; it’s follow the tweets. When Chuck Todd said that the vice-president’s office had contacted him immediately after the interview aired and told him that that vice-president was speaking for himself and not the administration – that sort of makes clear where things were, even though later David Axelrod, representing the campaign, made a statement saying that the vice president hadn’t said anything more than what the president had already said.

Now these reports that have come out afterwards with the vice president apologizing to the president for having jumped in front of his skis. The reality was that he clearly had come out for marriage equality on the show, that he wasn’t saying that same thing as Obama, and that they were a little caught off guard by it and not sure how to react to it.

JH: There was, prior to this announcement, clearly some dissatisfaction within the gay community and with gay donors – there was a story recently that gay donors were threatening to withhold campaign funds. This was over a number of different issues. Tell me about the executive order that a lot of people were hoping the Obama administration would sign, but did not.

CG: Well, yeah. Greg Sargent’s report at the Washington Post – he talked with Paul Yandura and referenced a big Dem funder Jonathan Lewis -- both of them talked about how several donors were dissatisfied with the president’s failure to issue the executive order. It was an executive order that would bar federal contractors from discriminating on the basis of sexual orientation or gender identity.

JH: So that’s federal contractors, not the entire private sector? That’s people who get our tax dollars.

CG: It’s companies who have more than $10,000 in federal contracts. The reason I use that number is that the executive order would presumably be modeled after an existing executive order which bans contractors from discriminating on the basis of sex, race, religion, or national origin. That executive order has been in place since 1965 -- since the year after the Civil Rights Act was passed. The idea is that the president, who has been running since last year on this idea of "we can’t wait – if Congress isn’t going to act then I’m going to do what I can do with my executive authority."

Here’s a perfect situation that calls for such action, because the House Republicans are not going to move on the Employment non-Discrimination Act, which would be the legislative version of Title 7 of the Civil Right Act. So the president should act now to sign this executive order into effect that would impact the federal contractors, which is not an insignificant part of the workforce. It’s around 20 percent of the non-federal workforce, of the private workforce.

JH: Right. Getting back to marriage equality: Obama said that while he favored it personally it was up to the states to make it happen. Some people took that as kind of a cop-out.

The thing I don’t quite understand about that is that family laws are the domain of the states. Unless I’m missing something, the only federal body that could really mandate equality in marriage is the judiciary. It was the Supreme Court decision known as Loving v. Virginia that struck down laws barring interracial marriages. It wasn’t an executive order and it wasn’t an act of Congress. Am I wrong about this?

CG: You’re right on point here. I think that the problem with a lot of these criticisms of the president’s position is that it only looks at the policy positions and the personal positions of the president and doesn’t look at the legal positions.

The legal positions that you’ve referenced in regards to the historic role of the judicial branch in directing this -- when the president says that states should decide this issue-- it’s important that he also believes there are federal, constitutional limits to what that states can do and how a state can decide that. One of those limits is the Equal Protection Clause. That’s what Loving v. Virginia involved.

The Department of Justice has been in court of for the past year, since February of 2011, arguing that classifications based on sexual orientation (they’ve been doing it in the guise of the Defense of Marriage Act) are subjected to “heightened scrutiny.” They should be given a more stringent review.

The government would have to prove that there was an important interest involved, and that this was tailored to that interest. Because of that they argue that DOMA is unconstitutional, but the legal reasoning behind that is the reason that, for example, Ted Olson and David Boies are arguing that Proposition 8 should be struck down [in California].

The day that that DOJ announced that they were taking this position on DOMA, Olson and Boies filed a document in the Prop 8 case saying look, the federal government’s taken this position. This position obviously applies to Prop 8.

That is the missing link to these criticisms of what Obama has said. In all three areas: in his personal preference, in his policy preference, and in his legal dictates for the Department of Justice has taken the position that leads to marriage equality.

JH: Chris, I want to make sure that everyone understands this really clearly. The highest level of scrutiny that the court can apply is to potential infringements on people’s civil liberties. The 14th Amendment says all citizens must be treated equally under the law. What the Obama administration is doing is going into courts and making this argument that this is a 14th amendment issue. Is that right?

CG: Yeah. That’s exactly right.

JH: And that gets to the heart of the matter. There was a Supreme Court case called Lawrence v. Texas, which struck down state sodomy laws as unconstitutional. Is that case the start of an inevitable move toward marriage equality?

CG: There are two different ways that the court could reach marriage equality: either through due process – that you have substantive liberties that are protected as fundamental by our constitution need to be given to all. Ted Olson talks about this a lot. The Supreme Court has ruled 14 times that marriage is a fundamental right. On that grounds, he says, the federal courts should enforce marriage equality.

The other route is through equal protection. When you classify people you view it under one of three areas: either rational basis, which basically means "give us a reason and we let it go as long as it’s a rational reason"; intermediate scrutiny, which says, "you need to give us an important reason," and that’s what used with sex-based classifications; or "you need to give us a compelling reason" -- that’s what is used with raced-based classifications.

What the DOJ has been arguing is that with sexual orientation -- and incidentally also with gender identity -- they’ve made clear in other filings, that some form of heightened scrutiny, either intermediate scrutiny or strict scrutiny should be applied to any classifications. That runs the gamut from DOMA to state marriage amendments to local city ordinances.

JH: I just want to point out on the point of equal protection is that it was actually Justice Scalia in his dissent in Lawrence v Texas who said that when you strike down sodomy laws it would eventually lead to full equality for LGBT people. Prior to Lawrence the idea was that gays and lesbians broke the law in the privacy of their own bedrooms, and were therefore unable to claim equal protection under the 14th Amendment. As soon as those sodomy laws were struck down it was, at least according to Scalia, an inevitability.

CG: That was the point that he made. Looking at the language of the majority he said at one point something along the lines of, "do not believe it. The court says that this doesn’t have to do with marriage, but do not believe it." The truth is that we saw very soon thereafter the Massachusetts Supreme Court did apply Lawrence and looked at it. They were dealing with Massachusetts law, so it wasn’t required. It wasn’t binding precedent, but they looked at it for guidance. They said if this is what the Supreme Court is saying about the way we need to treat our citizens then we probably need to consider that when we look at our marriage laws.


Joshua Holland is an editor and senior writer at AlterNet. He is the author of The 15 Biggest Lies About the Economy: And Everything else the Right Doesn't Want You to Know About Taxes, Jobs and Corporate America. Drop him an email or follow him on Twitter.