It’s About the Empathy, Stupid
What matters isn’t just Obama’s decision to support gay marriage, but how he got there.
Photograph by Brendan Smialowski/AFP/Getty Images.
When President Barack Obama announced yesterday that he supported gay marriage, he wasn’t just describing a policy shift, or an evolution, or an election position. Although the phrasing was hideously clunky—“it is important for me to go ahead and affirm that I think same-sex couples should be able to get married”—the words are historic and brave. Say all you want about polling, pandering, fundraising, and the fact that Obama was for gay marriage before he was against it. The point isn’t so much that Obama arrived at the decision to speak out in favor of equality and dignity. It’s that in telling us how he came to his decision, he exemplified something that has all-but disappeared in American politics: respect for the dignity of the other and the best ways to talk about it.
This isn’t so much an act of leadership as it is an act of personal imagination. As Will Saletan so deftly argues here, American public opinion on gay rights began to shift only after most of us encountered gay American families at our schools, churches, and jobs. That’s exactly how the Supreme Court changed course on gay rights—in just the blink of an eye, between 1986 and 2003. When Obama explained yesterday that his own preferences and values were informed by conversations with his wife, his staff, and friends, I was reminded of Justice Anthony Kennedy’s views of gay marriage as described by Professor Dale Carpenter in his brilliant new book, Flagrant Conduct, a history of the Supreme Court litigation in Lawrence v Texas, the 2003 challenge to Texas’ anti-sodomy laws. The Supreme Court’s historic shift on gay rights happened precisely as Obama’s did: a result of a network of gay clerks, oral advocates, and academics that became increasingly present in the life of the Court.
In 2003, in Lawrence, Justice Kennedy was able to imagine, as Obama was able to imagine yesterday, precisely what it means to be a gay American seeking only to achieve the most simple outcomes—a spouse and a family—and be denied those things because of stigma and contempt. This is an issue that those on the receiving end of all that contempt understand more than Obama or Kennedy do. It is to the credit of Obama and Kennedy that they listened long enough to hear it, too. When Kennedy read his opinion in Lawrence from the bench in 2003, it was an acknowledgement that he understood and repudiated that stigma and the laws that perpetuated it. It was a rare act of political listening, rather than political performance, that has all but disappeared today.
We all like to pretend that our views are etched in stone at an early age, and exist, fixed outside of our own experience. For some of us that may be true. But for many if not most of us, the people we meet and get to know will shape our views. Justice Antonin Scalia talks admiringly of the ways Justice Thurgood Marshall’s life experience shaped his own ideas on race. (He told Juan Williams that “Marshall could be persuasive, a persuasive force by just sitting there.") Ruth Bader Ginsburg was able to get her male colleagues to rethink their position on strip-searching teenage schoolgirls, by reminding them—gently—that they had never been teenage schoolgirls. The same is true of Justice Lewis Powell, the swing vote in the 1986 decision Bowers v Hardwick, which upheld gay sodomy laws that would later be struck down in Lawrence. Powell was 79 when he heard the oral argument in Bowers and told his law clerk, "I don’t believe I’ve ever met a homosexual.” (The clerk was gay.) Powell said years after he stepped down that his decision in Bowers was one of his mistakes. Evolving, it seems, is only a bad thing, when other people do it.
Whatever your view of President Obama’s motives, or the legal consequences of his statement yesterday, it is not in dispute that the words he spoke gave many Americans—including gay children and teenagers—the message that he had heard them, and that their experiences mattered so much that he’d changed his views—personal, political, and legal. He wasn’t declaring war on marriage, or on religious Americans, or on any church or pastor. I didn’t hear anything like blame being leveled against anyone. But he was also declining to blame gay Americans for everything that’s currently wrong in the country from the divorce rate to the economy.
Taking his words at face value, what he was saying reflects precisely the thing Obama does at his best: He listens. My oracle at Facebook tells me that many of us think that is also precisely the thing Obama does worst—he compromises, triangulates, and negotiates. But perhaps we could at least stipulate that listening to and—yup, I’m saying it—empathizing with people who are very different from you, and rejiggering your views to accommodate them, is a quality we have seen almost none of in this presidential campaign, from either side. That isn’t to say that every person in the country deserves special solicitude on every policy question from every candidate. But it is to say that the quality whose absence Obama most lamented at the Supreme Court—empathy—has been vanishingly rare in this election cycle as well.
That’s why I can’t read Obama’s words yesterday for their subtext, their super-text, or their invisible risks and calculations. I read them as a very literal reminder of what needs to happen more often during this election campaign: We need to listen to the experiences of others before dismissing them as dangerous, immoral, and wrong. Obama wrote in The Audacity of Hope, that his whole moral code was conditioned on the idea that to be able to empathize with people richer and poorer, more liberal and more conservative, is to be "forced beyond our limited vision.” Andrew Sullivan has called what Obama did yesterday “letting go of fear.” You can’t do that unless you listen to fear first, and that’s as good a descriptor as any for what the president did this week.
Dahlia Lithwick writes about the courts and the law for Slate.