Posted Wednesday, May 9, 2012, at 5:08 PM
Oddly enough it fell to John Cook, and not someone at Slate, to make the hard-hearted argument that Barack Obama wimped out today. He can't rely on the tape, because ABC is parsing it out. He relies on the write-up which suggests Obama stuck by his federalist guns. Cook:
There are currently at least three cases winding their way toward federal courts that address the issue of whether (among other things) the equal protection clause of the constitution guarantees gay men and women the same access to marriage rights as heterosexual men and women—the Proposition 8 case, in which David Boies and Ted Olson challenged California's ban on gay marriage, and several challenges to the Defense of Marriage Act, which bars gay men and woman from receiving federal marriage benefits and allows states to refuse to recognize valid gay marriages. Obama's Justice Department has admirably declined to defend the constitutionality of DOMA. But the position he enunciated today is in opposition to Boies and Olson: Obama is saying that if he were a judge, he would have rejected Boies and Olson's constitutional arguments and affirmed the right of Californians to enshrine bigotry in their state constitution.
We don't need to go that far. I'm sure that Judge Obama would find some rationale for legalizing gay marriage in his state or district, if it came up, just as the Goodrich and Iowa judges found their reasons. Cook's right -- Obama is saying remarkably very little when he reveals "personally, my personal position." The problem, when it comes to marriage, is that there's not much else he can say. Before he spoke, 38 states had amended their constitutions to explicitly define marriage as between men and women. There was no comparable federalist issue when Roe v. Wade was decided, say -- only later did states start fighting about what their founding documents should say about fetal ensoulment.
Now: Obama's not quite so federalist on other burning issues. His administration is suing Arizona over SB 1070. It's not suing North Carolina over Amendment One. Today's big achievement, as my colleague Emily Bazelon puts it, was that "Obama caught up to his administration’s legal position... without going beyond it." That's... not terribly inspiring!