Is Romney Vulnerable on Gay Marriage?

By Nick Gillespie, Hit & Run - May 11, 2012

Yesterday, the day after President Obama finallyendorsedgay marriage, his campaign released a video faultinghis presumptive Republican opponent, Mitt Romney, for not doing soas well. The contrast the video draws, based mainly on publicstatements by Obama and Romney, is mostly fair but misleading inone important respect: It suggests that Romney, unlike Obama'sRepublican predecessor, George W. Bush, opposes even "civil unions"for same-sex couples. As I notedyesterday, that is not true: Romney is on record as supporting"domestic partnerships" that include "the potential for healthbenefits and rights of survivorship." What else they might includeis not clear. The video claims Romney opposes "health insurance foryour partner and kids," which is not accurate unless Romney haschanged his positionsince he was running for governor of Massachusetts in 2002. It alsosays he would prevent gay couples from "adopting children together"and making "emergency medical decisions" for each other, but itdoes not provide any quotes to back up those claims. 

The video does show Romney saying, after Obama's announcement onWednesday, "I don't favor civil unions if they're identical tomarriage other than by name" (which is what Obama supported until two days ago). But there's a wide range ofpossibilities between that option and no legal recognition at all.Romney should be pressed to say where on that range he falls,because that question highlights the practical difficulties thatgay couples face every day and the basic unfairness of theirunequal legal treatment. Romney does not want to talk about gay marriage, precisely because itputs him in the awkward position of explaining what alternatives hefavors. But if you are inclined to question the issue's relevancein a presidential race, since marriage law is traditionally handledby the states, note that Romney himself has declared this a federalissue by insisting on one nationally imposed definition of marriage(a point the video also highlights).

Obama, by contrast, says the issue should be resolved state bystate. That means he is not, for the time being at least, making aconstitutional argument against state bans on gay marriage,although he has opposed them on policy grounds. On the face of it,his federalist position is consistent with his opposition to theDefense of Marriage Act (DOMA), which bars the federal governmentfrom recognizing state-certified gay marriages. But his argument against the constitutionality of that provision isbased on the equal protection guarantee implicit in the FifthAmendment's Due Process Clause, not on the 10th Amendment. AsI said in my column this week, that position suggests Obama would bereceptive to an equal protection argument (based on the 14thAmendment) against state laws prohibiting marriage between peopleof the same sex, along the lines of the challenge that led theSupreme Court to overturn state bans on interracial marriage. Thatis exactly the analogy drawn by opponents of California'sProposition 8 in a case that is heading for the Court (along with achallenge to DOMA that involves both equal protection and 10thAmendment arguments). But as long as Obama says states should befree to define marriage as they see fit, his video's charge that"Romney would even let states roll back federal rights for couples'hospital visits" (because he says "states are able to makedecisions with regard to domestic partnership benefits") rings abit hollow.

At the same time, Romney is the one who wants to federalize thedefinition of marriage via a constitutional amendment defining itas the union of one man and one woman, a proposal Obama has alwaysopposed. And since Romney says he opposes the "strong version" ofcivil unions that Obama used to advocate, which is essentiallycivil marriage by another name, it is fair to ask him whether theamendment he imagines also would address that possibility. If so,the federal government would necessarily become involved indictating the details of domestic partnerships, even though Romneysays each state should be able to decide those for itself. Sincemost Americans favoreither gay marriage or something similar to it (though how similaris up for debate), Romney will have a hard time answering suchquestions without alienating people whose support he needs to winthe general election. But if he goes too far in countering theObama campaign's portrayal of him as insensitive to the injusticesinflicted on gay couples, he risks turning off the socialconservatives he has been courting until now. I am looking forwardto seeing him squirm.

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if you are inclined to question the issue's relevance in apresidential race

Everyone should be so inclined.

Romney's mostly vulnerable for being about as much of aflip-flopping fuck as Our Current President(tm).

He's also vulnerable to the stupid that consumes most of thecitizens of the USofA - although that could elect him just as muchas it could not elect him, so...tough call. Cuts both ways.

President DreamyPants doesn't flip-flop, he evolves.

"he evolves."In 180* turns. That's not flip-flopping! It's flop-flipping.

It's a fap-flop.

I rather thought it was more fop fapping.


dammit, go learn ruby already. perl is dead.

There's also fap-slop, but that's a topic I'd rather notaddress.

The ability to define marriage is NOT one of the enumeratedpowers of Congress, and the issue is irrelevant to the Presidentialelection. This whole thing is about the Dems trying to distractpeople from the way they have totally cocked up the economy.Believe it or not, the legal effect of marriage varies state bystate (property laws, laws of dower and intestate succesion, etc. .. .). Obama is actually right that it should be left to the states,but if he is re-elected, you can be sure that he will try tofederalize it in the name of civil rights.

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