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Parsing Obama on constitutional liberty, gay marriage, and Proposition 8:

I've been in rainy California volunteering against Proposition 8, which would ban gay couples from marrying in the state, and so just now read David's post from yesterday critiquing Barack Obama's views on gay marriage and Prop 8. I do see some (not insoluble) logical problems in Obama's opposition to gay marriage and Prop 8, as I wrote in a post in July, and so to that extent I agree with David.

But as for the consistency of his constitutional views, I tend to think we shouldn't hold politicians to high standards of exactitude when they do interviews on MTV. So let me indulge Obama a bit more than David is inclined to do. Responding to a question about Prop 8, here's what he said:

I think it's unnecessary. . . . I believe marriage is between a man and a woman. I am not in favor of gay marriage. But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that's not what America's about. Usually, our constitutions expand liberties, they don't contract them.

David reads this as a generalizable claim by Obama that constitutions should not be amended to contract liberties previously "expanded," in this case, by the California Supreme Court decision for SSM last May. He then chides Obama for presumed inconsistency in not similarly opposing the contraction of slaveholders "liberty" to own slaves, the right to be free of income taxes, and the economic liberty recognized in Lochner.

As I interpret Obama's statement, however, he is making no such generalizable claim about "expansions" of constitutional "liberty" being irreversible. He's making a general claim that seems to me quite defensible: that most of our constitutional charters and their most important individual rights provisions have expanded or at least consolidated and secured individual liberty.

Obama is asserting a policy preference against gay marriage. (Actually, I don't think he really is against gay marriage but that he's saying so for political reasons, which makes him a politician.) If he were in a legislature he would vote against it. He may see allowing gay couples to marry as an "expansion" of liberty for them, but it's an expansion that he opposes just as he would oppose expansions of other liberties (e.g., to use drugs, to prostitute oneself, and so on). It is possible, especially if you're not a libertarian, to regard something as both a liberty and a bad idea.

But he does not believe we should amend a constitution to prevent the legislature from allowing SSM, and thus expanding liberty at some future date when he and other legislators with more information and experience may change their minds on the subject. And more to the point in the case of California, he does not believe we should reverse their liberty once gay couples do in fact begin marrying, as some 18,000 of them have done since June and as many more thousands would do if allowed.

Obama is probably not agnostic about what counts as a liberty, or as a worthwhile liberty, and so I presume would reject the notion that his opposition to Prop 8 should compel him to support Dred Scott, the end of income taxes, and the demise of minimum wage and maximum hours laws.

Of course, you can disagree with him about the substance on gay marriage, the income tax, slaveholders' "rights," and liberty to contract. But that would require a much more extended discussion than his soundbite response to a question from "Gangstagigz" in San Leandro. At the end of the day Obama might not have very sound reasons for his substantive views on these matters of "liberty," but at least at this point it's not obvious to me that his stand against amending a constitution to prohibit the freedom to marry while tolerating limits on other claimed liberties is "silly."

Finally, I should note one thing for the record. The California marriage decision did not "lead to the movement to pass Prop 8," though it may have added fuel to the fire. The proposition was filed and the requisite number of signatures gathered before the California decision came down. The vote tomorrow on the marriages of gay Californians was going to happen regardless of what the California court did.

Related Posts (on one page):

  1. Parsing Obama on constitutional liberty, gay marriage, and Proposition 8:
  2. Obama as a Constitutional Scholar:
Bill2:

Usually, our constitutions expand liberties, they don't contract them.


I'd be a lot easier about the guy if I thought he applied that principle broadly - that any liberty I or my ancestors enjoyed should be handed down intact to my descendents!
11.3.2008 8:27pm
Pragmaticist:
Dale Carpenter: "(Actually, I don't think [Obama] really is against gay marriage but that he's saying so for political reasons, which makes him a politician.)"

I think the same is true of McCain.
11.3.2008 8:27pm
tsotha:
The vote tomorrow on the marriages of gay Californians was going to happen regardless of what the California court did.

That may be true, but what did lead to the movement to pass prop 8 was the (correct) belief the courts would eventually rule on this question. I'm sympathetic to the idea of gay marriage, but the courts aren't the right place to make policy.

Having said that, let me say the proposition is overbroad in that the definition of marriage to cover only a man and a woman. I think if it had just removed the courts from the question it would have passed easily.

As for Obama, well, yeah, he's trying to have it both ways. But surely people realize any judges he appoints to the Supreme Court will see the right to marry for gays written in invisible ink between the lines of the text.
11.3.2008 8:27pm
wt (www):
This is atypically unpersuasive writing from Dale.

Remember, the argument relies on the fact that Obama, actually, doesn't support gay marriage. To the extent he's lying, the argument goes away and we have a *much* bigger issues about whether you can vote for a politican who you KNOW is lying to you and the American public.

But once we agree that Obama condemns gay marriage, like he would probably condemn Dred Scott and Lochner, Obama's argument collapses. The question is why you would oppose a policy change even though you support the policy outcome. Obama's answer makes it hard to distinguish from these instances.

The "worthwhile liberty" argument doesn't help either, since we already know that Obama, if he's being honest, doesn't think gay marriage is such a liberty. In fact, a concept of "marriage" between two same-sex individuals doesn't even exist for him, he "doesn't believe" in it.

So I think it's back to the drawing board.
11.3.2008 8:32pm
b:

(Actually, I don't think he really is against gay marriage but that he's saying so for political reasons, which makes him a politician.)


what makes you say that? in all honesty, do you have any evidence that he is in fact in favor of gay marriage?

it seems to me that blacks in general, and black church-goers in particular are some of the most anti-gay groups out there. i suppose it's possible that obama is an exception. but i've never seen him say anything to suggest that he's anything but anti-gay marriage.

so from his record, it would be just as easy to conclude that he's anti-gay marriage, but only opposing proposition 8 for political reasons.
11.3.2008 8:36pm
Dan M.:
Obama is not asserting a policy preference against gay marriage; he is merely asserting that he prefers to marry the straight way, and hoping that he can play both sides of the issue.

Didn't the people of California already vote to define marriage as between a man and a woman, and it was ignored by the court?

I just don't see how there is a middle ground on the issue. Either you are in favor of allowing gays to marry, or you are opposed. Obama seems to be clearly in favor, which is fine, but just come out and say it. The "Yes on 8" fliers that quote Obama's saying "I am not in favor of gay marriage" are entirely appropriate. Force him to take a stand.

The odd thing to me is that Mormons are the ones pushing this so hard. But maybe they figure that they should get polygamy laws liberalized before gays can get married. I'd be pretty bitter about that if I were a Mormon.

I hope someone who says "I tend to think we shouldn't hold politicians to high standards of exactitude when they do interviews on MTV" would show the same deference to Sarah Palin when she's using "First Amendment" as a general reference to free speech in an interview about media attacks, or when she's telling a 3rd grader that the President of the Senate is "in charge" of the Senate.
11.3.2008 8:42pm
wooga:
wt,
You can parse the difference by saying:
"Obama finds gay marriage a moral abomination."
"Obama does not think the state should ban said immoral behavior."

Obama cannot openly say this, since he might alienate his base of statist moral relativists. Which is odd, since Obama has already confirmed that he is a statist moral relativist (i.e, "the definition of sin is being out of alignment with my [Obama's] values").

Of course, I think Obama is just lying about his opposition to gay marriage, for purely political purposes. Just like the NAFTA situation. Hopenchange!
11.3.2008 8:43pm
Smokey:
No one is denying the right of gays to get married. And no one ever has.

Anyone, regardless of their sexual orientation, has the same right to marry a member of the opposite sex.

We're all equal.
11.3.2008 8:45pm
Dave N (mail):
hope someone who says "I tend to think we shouldn't hold politicians to high standards of exactitude when they do interviews on MTV" would show the same deference to Sarah Palin when she's using "First Amendment" as a general reference to free speech in an interview about media attacks, or when she's telling a 3rd grader that the President of the Senate is "in charge" of the Senate.
Particularly when the former taught Constitutional law at a top 10 law school and the latter isn't even an attorney.
11.3.2008 8:46pm
Confused One:
Amen, Smokey, just like no one ever denied the ability of blacks to marry--they were free to marry someone of their own race, just like whites.

Equal rights.
11.3.2008 8:52pm
Dan M.:
Well, I guess Obama could be anti-gay marriage. Sometimes I forget that being a Democrat doesn't preclude you from being a bigot like us Republicans.
11.3.2008 8:57pm
Charles Chapman (mail) (www):
(Actually, I don't think he really is against gay marriage but that he's saying so for political reasons, which makes him a politician.)
I'm not so sure. The New York Times recently reported:
Several gay friends and wealthy gay donors to Senator Barack Obama have asked him over the years why, as a matter of logic and fairness, he opposes same-sex marriage even though he has condemned old miscegenation laws that would have barred his black father from marrying his white mother.

The difference, Mr. Obama has told them, is religion.

As a Christian — he is a member of the United Church of Christ — Mr. Obama believes that marriage is a sacred union, a blessing from God, and one that is intended for a man and a woman exclusively, according to these supporters and Obama campaign advisers. While he does not favor laws that ban same-sex marriage, and has said he is "open to the possibility" that his views may be "misguided," he does not support it and is not inclined to fight for it, his advisers say.
Yes, he could be lying, like any politician. But personally I don't think he would provide a religious explanation if he was lying and planning to "change" his mind later. To do so would only open him up to more criticism.
11.3.2008 9:04pm
byomtov (mail):
I very much doubt that either Obama or McCain really opposes gay marriage.
11.3.2008 9:09pm
Asher (mail):
I'd be a lot easier about the guy if I thought he applied that principle broadly - that any liberty I or my ancestors enjoyed should be handed down intact to my descendents!

I know! If only he applied that principle like Professor Bernstein seems to suggest we apply it, and argued that your ancestors' liberty to bring slaves into federal territory, or make contracts with employers free of pesky minimum wage laws, should be handed down to you and your descendents [sic]!
11.3.2008 9:16pm
Smokey:
Confused One,

So now you're another "victim," akin to victims of racism, just like old timey slaves.

Apt moniker, there.

Tell us, when will the hard-bitten taxpayers, who are expected to always foot the bill, get the financial benefit of being 'victims'?
11.3.2008 9:26pm
Smokey:
Asher,

For a putative grammar Nazi, you put 'sic' in the wrong place.

But nice try.
11.3.2008 9:29pm
guest890:

But he does not believe we should amend a constitution to prevent the legislature from allowing SSM,


The courts allowed SSM. The legislative process explicitly disallowed it.
11.3.2008 9:33pm
Asher (mail):
For a putative grammar Nazi, you put 'sic' in the wrong place.

Do you not even know the difference between grammar and spelling? Do you have no shame?
11.3.2008 9:42pm
Syd Henderson (mail):
I think two different things are getting confused. It's not inconsistent to be opposed to something yet not want a law outlawing it. Sometimes it's better to be tolerant than to use the law to impose your views on others.
11.3.2008 9:47pm
MQuinn:
Smokey said:

No one is denying the right of gays to get married. And no one ever has.

Anyone, regardless of their sexual orientation, has the same right to marry a member of the opposite sex.

We're all equal

I see many things wrong with this analysis. First, a distinction is being drawn on the basis of gender. Suppose X (a female) wants to marry Y (a female). Y is disallowed from doing so, whereas Y would be allowed to do so were she a male. Thus, males enjoy a benefit not enjoyed by females (and vice-versa). Second, straights are allowed to marry their person of preference, whereas gays are disallowed from marrying their person of preference. Thus, straights enjoy a benefit not enjoyed by gays. As a result of these two (among many) examples, we are not all equal.

Now, you can argue that this lack of equality is justified. I disagree with that position, but it is arguable. However, stating that this lack of equality is justified is entirely different than your suggestion that we are all equal. It is patently untrue that we are all equal in this context.
11.3.2008 10:03pm
Confused One:
Smokey,

When did I say I was a victim? Are you so small-minded that you can't conceive of a heterosexual who supports gay marraige?

Pretty awful reasoning you have--address the issue, fine, but stupid semantic games don't garner your argument any respect.
11.3.2008 10:10pm
Roger Schlafly (www):
Considering that Obama calls himself a constitutional law professor, I think that he should be able to explain his legal positions better than that.
11.3.2008 10:16pm
Asher (mail):
I see many things wrong with this analysis. First...

MQuinn, a shorter answer is Loving v. Virginia. Everyone was equal there in the sense that they could marry people of their own race, but the statute was still unconstitutional - although Loving's analysis isn't the most lucid. But basically the idea was that anti-miscegnation laws stigmatized blacks.
11.3.2008 10:34pm
James Gibson (mail):
Fascinating. Mr. Carpenter does at least say that the rights were expanded by the court. Expanded in the same manner as people on this blog have argued for the contraction of the right to bare arms to only the militia. Its even more amazing to me how the people who call someone a bigot for not supporting gay rights would in turn call gun owners murders or criminals simply because they own guns.

Thats part of my problem with Diana Feinstein's commercial telling us to not be intolerant while she has been intolerant of gun owners for decades and essentially of conservatives for as long. Which in turn brings up my concern with this issue, Group A people requesting Group B people to be tolerant of Group A people who in turn have no intention of being tolerant of Group B. Regardless of the stories that the churches will not be threatened with lawsuits for not performing gay marriages, or that the schools will not be changing the cirriculum to emphasize the gay lifestyle, I am afraid that within two years these statements will be proven to be a lie. I have seen a distinct change in the attitude of gays to straights in the last two decades, one that I find quite disturbing.

In the 80s and 90s they would be polite and emphasize that they were normal in every way other then their sexual preference. They would also emphasize that they were gay due to an as yet undetermined genetic difference so that they were born that way. But by 2000 the situation changed. Several high profile cases of Lesbians who suddenly switched back to heterosexual on leaving their Alpha female lover. Gay pride parades became public S&M displays and activist gays began harrassing ministers and even humiliated the Catholic Bishop of San Fran in his own church. And as for the idea of a genetic predisposition, now they seem to push homosexuality as a lifestyle.

Gay marriage may be to some just a civil rights issue, but its beginning to look like the start of legalized intolerance by Gays against straights. And if that comes to pass then the arguments for gay marriage posted here become just a fraud to cover-up another agenda.
11.3.2008 11:02pm
Brian G (mail) (www):

I've been in rainy California volunteering against Proposition 8


Excellent, Professor. This how gay marriage should be won, not through the Courts. Of course, this is the more difficult way, rather than the cheap and easy win throug a few justices, but your long-term position is secure if you get the win at the ballot box.

It is only a matter of time before your side prevails. I would vote against it if I were in California, but my kids won't in the future. Although I disagree with your position, I love what you are doing. I urge you to keep fighting for your beliefs, even if I disagree.
11.3.2008 11:24pm
MQuinn:
Asher,

You are of course right. I wish I had thought of that.
11.3.2008 11:49pm
Joshua House (mail):
I'm from San Leandro and I just think its great that gangstagigz is asking questions about politics instead of shooting things.

Sadly, I'm not being facetious.
11.3.2008 11:58pm
Daryl Herbert (www):
The California marriage decision did not "lead to the movement to pass Prop 8,"

Not so fast.

First, Prop 8 hasn't passed (or failed) yet. If Prop 8 does pass, it's probably Justice Ronald George's activism that put it over the top.

Second, just because the opinion didn't come down, the fact that the question was being reviewed by the Supreme Court of California may have been an impetus to push to get Prop 8 on the ballot.

I despise Justice Ronald George's decision to force gay marriage on California, because it was a betrayal of our Constitutional system of government. It was also in the long run probably counter-productive to gay marriage in California (we will find out tomorrow).

That said, the fact that Prop 8 is on the ballot means that the people of California get to choose the outcome--which is how it should be. So I hope the people of California vote NO.

P.S.: how pathetic are the ads on both sides? What DOES gay marriage mean to a 7-year-old? ("But what does it mean to me?") Why should I care about that? Obviously, the subtext is: if gay marriage stays as the law, your daughter will experiment with lesbianism when she's 15. Which is super-hot, as long as it's someone else's daughter.

And on the other side, ads comparing this to the civil rights movement. News Flash: black people don't like being told that having black skin is like having butt sex. Could anything be more counter-productive?

The No-on-8 ads should just feature a bunch of gay interracial married couples, with children at their feet, telling the voters that gay marriage is a good thing, and that this is only a matter of what rights/responsibilities the GOVERNMENT chooses to recognize, and it won't force anything on their church or their school.

(of course, they should pick normal-looking gays and lesbians, not limp-wristed queers and bulldykes, not that there's anything wrong with that . . .)

The idea that No-on-8 campaigners have that "Don't Mention Teh Ghey" has to be one of the stupidest, most cowardly moments in gay rights history.
11.4.2008 12:46am
Kazinski:
The comparison of bans on gay marriage and interacial marriage doesn't stand up to any scutiny. Under an interacial marriage ban, black men and white men couldn't marry the same woman, their set of prospective spouses were completly different. With a gay and straight male their set of eligible spouses is identical. So there is no discrimination there.

As for the idea that someone should be able to marry the person of their preference of whatever gender is laughable; Jessica Alba won't even return my phone calls, let alone respond to my marriage proposals.

I would have been unlikely to vote for Prop 8, before the CA Supreme court ruling, after it there isn't much of a choice. We can't allow the CASC to usurp the function of the legislature. I'd prefer that Prop 8. just restore the status quo so the democratic process can work as designed, but you have to vote on the propositions you have not the ones you want.
11.4.2008 12:53am
Asher (mail):
The comparison of bans on gay marriage and interacial marriage doesn't stand up to any scutiny. Under an interacial marriage ban, black men and white men couldn't marry the same woman, their set of prospective spouses were completly different. With a gay and straight male their set of eligible spouses is identical. So there is no discrimination there.

To which the retort would be that men and women have a completely different set of prospective spouses. The point, anyway, isn't that blacks and whites had different sets of prospective spouses, and one was better or worse; the Court said in Powers v. Ohio that "it is axiomatic that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree." Whether something violates the EPC doesn't depend on whether one class or another is worse off.
11.4.2008 2:08am
fishbane (mail):
Anyone, regardless of their sexual orientation, has the same right to marry a member of the opposite sex.

We're all equal.


Right. I think there was a famous statement at some point that sounds similar, about how we're all equal under the law, rich and poor, and neither are allowed to sleep under a bridge.
11.4.2008 3:06am
flyerhawk:
And on the other side, ads comparing this to the civil rights movement. News Flash: black people don't like being told that having black skin is like having butt sex. Could anything be more counter-productive?


Except that Prop 8 has nothing to do with sex. It deals specifically with the rights of 2 people who have decided to to contractually join with one another and who wish to receive the same rights as others that have done so.

Just because some people find their relationship icky doesn't mean they should have their rights restricted.
11.4.2008 8:26am
Matt_T:
Prof. Carpenter,

If Obama won't at least push gay marriage as an option for interested gay couples, then what is the point of voting for him? Obama is apparently not moved by his "deep" (note my skepticism for primarily First and Second Amendment reasons) constitutional understanding to rise above political pandering. This raises a second question: Why does Obama believe that a majority of people that will vote for him won't openly support gay marriage? Something tells me that black Baptists, Evangelicals, and lifelong Republicans don't comprise a sizeable enough voting bloc to make annoying the rest of likely Obama voters worthwhile.
11.4.2008 8:57am
Matt_T:
With a gay and straight male their set of eligible spouses is identical.

But it isn't equivalent to the set of spouses available to a straight woman, and that's long been the actual argument. Equal protection defenses of gay marriage, as far as I can tell, rely less on analogy to racial discrimination than on direct gender discrimination.
11.4.2008 8:59am
Smokey:
MQuinn:

How do you like living life as a pretzel? That "reasoning" is really contorted.

Poor females, they're being denied the right to sire children, just because of their sex. That about it?

Asher:

No, Asher, it's grammar when it's in the wrong place. But nice try at a recovery. +1.
11.4.2008 9:03pm