Thursday, February 24, 2011

Major DOMA

As you know, yesterday Eric Holder all but admitted that the Defense of Marriage Act, rammed down the throats of Americans during the 1990s, was Constitutionally unsustainable.
People on the left, especially people with an interest in seeing gay marriage legalized, were all aflutter about it. They shouldn't have been. This was not Obama's coming to Rome moment.
Operative words there are "all but". This was an incremental move on a long and arduous road to equality.

All that said, I am aware that this is a sort of side-door way for Obama to come out in support of gay marriage. But apparently the department's hand was forced by two lawsuits coming up on which it had to deliver opinions by March 11. From today's NYT story:

For technical reasons, it would have been far more difficult — both legally and politically — for the administration to keep arguing that the marriage law is constitutional in these new lawsuits. To assert that gay people do not qualify for extra legal protection against official discrimination, legal specialists say, the Justice Department would most likely have had to conclude that they have not been historically stigmatized and can change their orientation.

Can you imagine a Democratic president's lawyers arguing that?

Yup. This was not Obama slyly winking at his one-time "base," saying "Now, let's work on what we want." This was Obama cruelly calculating that, in order to shepherd his re-election, he could not afford to piss off a large number of wealthy and connected donors. This was Obama deciding that, to defend these two suits he would have to shift far to the right and claim homosexuality is a lifestyle choice, and that gays have never been oppressed like other minorities, Matthew Shepard aside.

This was not Barack Obama suddenly embracing gay marriage, this was not his "In Hoc Signo Vinces". Let's put away those bottles of champagne and fireworks and realize this was a very narrow decision made in the cold light of re-election mathematics. You'll note that Holder did not go so far as to say that the DOMA is wrong or unfair or wrongly exclusive and should be overturned on merit.

No, he said that he could not justify on two separate Constitutional tests, making a fight over it. That's capitulation, not cause for congratulation.

This takes nothing away from the fact that even in this small and near-insignificant gesture of surrender, he has not taken a stance that will be derided and reviled by the forces of bigotry, intolerance and hatred on the right. Indeed, because he took a clever little page out of the book of George Bush the Elder (who used a similar strategy in taking a stand against minority set-asides in broadcasting, as Tomasky points out), it will likely enrage those who were looking for the bigger fight on gay rights.

A smart President would have done what Obama did: make a small gesture and let the other side do what it does best: blow it up out of proportion, then inflame both sides into activism.

A courageous President would have taken the heat himself.