DOMA Decision Re-Ignites Fiscal vs. Social Conservatism Debate

Voters in the last election signaled a wish for the government's focus to be economic priorities, not divisive social issues. But anti-gay social conservatives have sworn to put gay and lesbian families front and center in the next election following the Obama Administration's decision not to defend the "Defense of Marriage " Act (DOMA) in federal court, saying that the 1996 law is unconstitutional and discriminatory.

The question is: Will the decision spur so-called "values voters" to the ballot box? Or has acceptance of gays and their families grown so prevalent--and the ongoing economic crisis become such an overriding concern--that the anti-gay right's tactic will prove self-defeating?

Under the provisions of DOMA, which was signed into law by then-president Bill Clinton, the federal government may not legally recognize gay and lesbian families. That means that even those same-sex couples that are married in the five states where family parity is legal can only access state-level benefits and protections related to matrimony. The law also allows states to ignore marriages granted in other jurisdictions. Section 3 of the law defines marriage as a legal union of one man and one woman.

But the Obama Administration effectively declared that DOMA violates the Fifth Amendment's equal protection clause, and lays the groundwork for a legal standard that requires compelling evidence to justify anti-gay laws and policies.

U.S. Attorney General Eric Holder announced on Feb. 23 that the Obama Administration had determined it would not defend DOMA because President Obama views the law as unconstitutional. The decision is likely to have far-reaching consequences, from how courts respond to cases involving GLBT equality to how the next presidential election plays out in 2012.

GLBT equality advocates see DOMA as a bulwark against full legal and social equality for gays and their families, because the law reaches into so many areas of family life. Under DOMA, immigration reforms that would give gays the same rights to sponsor a life partner from another country could be blocked. Moreover, because DOMA is a federal law the denies recognition to same-sex married couples, even those states where family parity is legal can only offer couples state-level protections: Social Security benefits for same-sex spouses, federal pensions, and tax protections are beyond the reach of non-heterosexual partners under current law.

DOMA also imposes a situation that has allowed a patchwork, and highly variable, legal situation to prevail. Married couples that leave any of the five states where gay and lesbian marriage is permitted may find themselves stripped of all protections--and all say--in family decisions if a spouse or child becomes ill or other problems arise.

But anti-gay social conservatives say that gay and lesbian families should be denied legal recognition in order to "preserve" heterosexual unions, which, they argue, would somehow be harmed if marriage equality were granted to same-sex couples. Moreover, social conservatives warn that religious individuals would find their rights of free expression and worship abrogated if gay weddings became commonplace.

The issue is still a highly charged one on both sides of the debate. In states where lawmakers are pushing for constitutional amendments to lock gays out of marriage rights--or to rescind existing rights, such as in New Hampshire--a commonplace criticism is that there are more pressing economic concerns to focus on.

That criticism was adopted by the anti-gay right and aimed at President Obama as soon as the Justice Department made its announcement.

"Out of all the things going on in the country, in the world today, Obama makes a big production out of gay marriage," conservative radio commentator Rush Limbaugh declared on his program. "No, this is not a stunt," Limbaugh continued. "What exactly is Obama's Plan B for oil? If the Middle East erupts entirely, what is his Plan C, what's his Plan D? He doesn't have any plan for it, because everything he does is oriented toward: How can it help him. He's out playing to the base."

Limbaugh went on to attack the so-called "liberal media" for its coverage of the decision on DOMA. "And of course The Politico gets right in on the action, covering it all as a game," Limbaugh said, referring to political news website Politico. "Their headline: 'Little Downside Seen for DOMA Call." Little downside for a president acting in an unconstitutional manner simply saying, 'You know, I don't like that law, I'm not gonna defend it anymore.'

"It's a law duly passed by the representatives of the people," added Limbaugh. "It has not been challenged at the U.S. Supreme Court. He does not have the authority to declare it unconstitutional. He does not have that power. He does not have the power to say, "I'm not gonna defend it anymore," and the Politico does a story: 'Can he get hurt by this? We don't think so.' "

Limbaugh went on to imagine a scenario in which Sarah Palin were president and making similar declarations about the constitutionality of health care reform and the Environmental Protection Agency.

"It explains everything, this sickening spectacle that is the left," Limbaugh declared. "Whether they pretend to be journalists, whether they are politicians, this is a dangerous force in this nation. We have to continue to expose them. That's all we can do."

A Liberal Agenda?

The Politico article in question addressed the question of whether the Obama Administration was taking significant resources away from dealing with the economy in formulating its response to suits challenging DOMA in federal court. The article, posted Feb. 23, noted that the White House press secretary, Jay Carney, had told the press that the DOMA issue was forced by an impending deadline requiring the administration to respond. The overall focus of the Obama Administration, Carney said, is "jobs, jobs, jobs." Added Carney, "We are also absolutely focused and committed on these key issues of economic growth and job creation." Meantime, Carney added, the issue would be left for the courts to deal with.

The Politico article also touched upon another central question. "By refusing to defend the Defense of Marriage Act in court, President Barack Obama is essentially gambling that the culture-war truce many Republicans have observed in recent months will hold through the 2012 election," wrote contributor Josh Gerstein.

That so-called "truce" in the culture wars has earned Indiana Gov. Mitch Daniels, a Republican, a fair amount of acrimony from social conservatives who accuse him of surrendering to liberals. But Daniels' strategy may prove effective at moving him to the head of what many expect to be a crowded pack of GOP presidential contenders vying for the nomination in next year's election: With his call for a "truce," "Daniels has set events in motion that greatly increase his chances of becoming president of the United States, as well as his prospects for effectiveness once elected," a Feb. 19 article at Real Clear Politics stated.

"The reason for the truce is to better contend for the votes of the independents that ultimately tip the scales in any presidential election, many of whom are put off by culture wars," the article noted, going on to observe that Daniels has time to "reassure social conservatives quietly, away from cameras and recorders" before the 2012 campaigns really heat up.

"Because social conservatives are interconnected through church and social organizations, this task is made easier," the article clarified. "This is an element easily overlooked by those of us who eat and breathe politics, because it recalls that 99 percent of the population is not similarly afflicted."

Attacks on Daniels by other prospective presidential contenders have already begun, reported a Feb. 24 Politico article. Rick Santorum took up the issue, stating, "If we do not, as a party and as a people, stand behind the institution of marriage and understand its essential role as the glue that holds the family together, the family, the building block of society, the first economy, the first school, the first place where children's character is formed we are going to destine our children and destine the future of this country for a lower standard of living and less free and prosperous country."

Santorum, speaking to the press in Iowa on Feb. 24, repeated the claim that Daniels was effectively surrendering. "Well, a truce, in this case, means ceding ground to the other side," he said. Such broadsides might gain Daniels' rivals some traction for a time--but the fact that the controversy is unfolding so far in advance of the nominations could well mean that attacks on Daniels' call for a "truce" will have long since faded by then, whereas the practical effect of such a true might easily exert in influence over the eventual election, the Real Clear Politics article suggested.

Other sorts of remarks, however, do not lose their power with the passage of time. Santorum himself has found it hard to shake a comment he made years ago that compared committed same-sex relationships to "man on dog" sex.

The New York Times offered conflicting predictions on how much impact the issue would still carry come election day, more than a year and a half from now. In a Feb. 24 article, the Times posited that a significant number of voters could carry anger over the decision not to defend DOMA into the voting booth. The article cited the passage of constitutional amendments in the 30 states where the rights of gay and lesbian families have been put up to a popular vote. (In one state--Arizona--it took two tries before voters approved such an amendment. The first attempt met defeat because of fears that unmarried heterosexual couples might be penalized. Only when the amendment's language was sharpened so as to impact only gay and lesbian families did Arizona voters approve it.)

The article also noted that marriage equality was not a driving issue in the 2008 election, but said that the primary reason for this was that no candidates had expressed support for marriage equality, with Obama arguing that while gay and lesbian families ought to have civil unions, marriage should be reserved as a special right exclusive to heterosexuals.

But a second article published by the New York Times on the same day characterized the response from mainstream conservatives as "mild" and noted that most voters were more likely to respond to economic issues than to social questions.

"The wedge has lost its edge," Republican strategist Mark McKinnon told the New York Times.

Less "tepid" responses came from the rightward fringe, noted the article, citing Tony Perkins of the Family Research Council, an anti-gay group that was itself the subject of headlines last year when it was revealed that FRC co-founder George Rekers had hired a young male prostitute to accompany him on a European vacation.

""The president has thrown down the gauntlet, challenging Congress," Perkins declared. "It is incumbent upon the Republican leadership to respond by intervening to defend DOMA, or they will become complicit in the president's neglect of duty."

Anti-Gay Right: Voters Will Be 'Galvanized'

A Feb. 25 Associated Press article similarly noted that fringe-right elements had responded far more strongly than mainstream conservative politicians, quoting a lawyer with the Alliance Defense Fund, Christian legal group, as saying, "The ripple effect nationwide will be to galvanize supporters of marriage."

Moreover, the article said, anti-gay elements on the far right wanted to see the social question of marriage put on "equal footing with the economy" in the months leading up to the next election.

An Associated Press poll from last year indicated that a bare majority--52%--of American voters favor granting gay and lesbian families full marriage rights. That even split, the AP article said, makes the issue all the more "volatile."

Or does it? GLBT equality advocates suggested that Obama had little to lose with conservatives, and everything to gain from the GLBT community, which had supported him in 2008 but become disillusioned over what it perceived to be the president's lack of vigor in taking up gay civil rights causes. The decision on DOMA--and a victory in shepherding through a Congressional repeal of "Don't Ask, Don't Tell," the law that forces gay and lesbian patriots to lie about their sexual orientation or be drummed out of the Armed Forces--may well give Obama a fresh sheen to GLBT supporters that lasts into the next election.

"I think [the right] will try to turn this into a major election issue," allowed Lambda Legal's Jon Davidson. "But the people who feel strongly that same-sex couples should not be allowed to marry were not going to vote for President Obama anyway."

Some have speculated that Obama supports marriage equality but has been cautious about tipping his hand on the issue. In 1996, Obama answered a questionnaire by indicating he would support marriage equality--a position that had changed by the time he ran for president twelve years later.

Anti-gay politicians have, over the course of the last two years, defended their views by saying that their stance on marriage equality is "the same as that of the president," but in an interview last year the president told gay blogger Joe Sudbay of America Blog that his position on marriage equality is "evolving"--with the implication being that he may be preparing to embrace his earlier position.

"I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage," Obama told Sudbay. "But I also think you're right that attitudes evolve, including mine."

Obama's words sent an instant frisson through the GLBT world, and the mainstream media took note. An Oct. 28 New York Magazine article by Dan Amira openly dismissed as "disingenuous" the distinction Obama makes when he says he upholds civil unions but not marriage equality.

Titled, "President Obama Getting Closer to Ending His Pretend Opposition to Gay Marriage," the article noted that Obama had opposed Proposition 8, the 2008 ballot initiative that rescinded marriage rights for gay and lesbian families in California. The article also tallied the president's record of support for GLBT equality, and recalled that in 1996 Obama answered a questionnaire that asked about marriage equality by saying that he would be in favor of it.

"When you add it all up, the only conclusion that really makes sense is that, in his heart, Obama is fine with gay marriage, but didn't think the nation was ready for a president who felt that way," Amira wrote. The article then went on to say, "Approval of gay marriage surged, it was legalized in a number of states, and Obama's support for civil unions, which would have been considered relatively enlightened five or ten years ago, began to seem downright antiquated to many people."

A Feb. 25 National Review Online article took umbrage with what it seemed Obamas "cowardly and cynical" tactics around the issue. "In a classic case of political passive-aggression, Obama is creating the greatest possible latitude for the courts to impose gay marriage by fiat, culminating perhaps in a Supreme Court decision that would be the gay-marriage version of Roe v. Wade," wrote contributor Rich Lowry.

"President Obama should take his case to the voters, and persuade them to adopt gay marriage through tried-and-true democratic means," Lowry added. "He might as well be honest: He's a supporter of gay marriage. What's he ashamed of?"