by Matthew J. Franck, Radford University

In the 2008 campaign and now that he is in the White House, President Barack Obama has made no bones about his support for the most extreme pro-abortion policies ever espoused by a U.S. president. While certain individuals have attempted to make the case that Obama will actually be “pro-life” or will work to reduce the incidence of abortion, he has already begun to make appointments, fashion policies, and pledge himself to commitments for more such actions that give the lie to this cover story. Already his reversal of the Mexico City policy, a decision to renew foreign aid to organizations promoting and performing abortions overseas, promises to increase the worldwide death toll from abortion. And on the thirty-sixth anniversary of Roe v. Wade, two days after his inauguration, while tens of thousands of Americans participated in the March for Life a stone’s throw from the White House, President Obama issued a statement hailing Roe as “protect[ing] women’s health and reproductive freedom,” declaring that he believes “government should not intrude on our most private family matters,” and proclaiming that the unfettered abortion right protects women’s ability to “have no limits on their dreams.” Never mind that abortion endangers women’s health, physically and psychologically; that Obama’s policy preferences would eliminate parental notification when minor girls seek abortions, thus making government the enemy of the family; and that abortion makes women’s “dreams” and “freedom” dependent on the destruction of their children.

So let it not be said that President Obama’s radicalism on abortion is any mystery to citizens minimally capable of informing themselves. His open extremism on abortion makes it all the more interesting that on the issue of same-sex marriage, where his views are equally out of touch with the mainstream of American opinion, Obama has taken pains to cloak his extremism in denial, obfuscation, and contradiction. Perhaps his effort at concealment arises from a felt need to appear “moderate” on the subject of marriage. The abortion issue has roiled American politics for more than three decades, and the Democratic partisans of abortion have their lines down pat: “safe, legal, and rare”; “reducing unintended pregnancies”; “protecting the right to choose.” And during the recent presidential campaign, the abortion issue had no immediacy. There was no vacancy on the Supreme Court, no major abortion case on the Court’s docket, and no pending legislation in Congress (the “Freedom of Choice Act” was making no headway while George W. Bush was president). And Republican nominee John McCain scarcely made abortion an issue, and said relatively little about the judiciary. This was a lost opportunity for McCain and a free pass of sorts for Obama. The Democratic candidate’s commitment to the unlimited abortion license received little attention from the elite media, and cost him nothing. By the time McCain brought up, in their third debate, Obama’s opposition to protection of infants born alive during attempted abortions, the Democrat felt confident enough of media support to deflect and prevaricate on the subject.

On the marriage issue, on the other hand, Obama apparently felt forced to engineer a more “moderate” position by the appearance of Proposition 8 on the California ballot. (Similar measures on the November ballots in Arizona and Florida had much lower national profiles than the struggle in California.) In California, where 61% of the voters had chosen in a 2000 referendum to prohibit same-sex marriage by statute, the state supreme court had decided last May 15 by a 4-3 vote to overturn that prohibition. The court held that “equal dignity and respect” under the state constitution required the state to accord persons a “right to marry” and other person of the same sex. California law had made civil unions or “domestic partnerships” available to same-sex couples since 1999, and those unions – expanded over time to encompass virtually every attribute of marriage but the name – had been unaffected by the 2000 ballot initiative. But in its May 2008 ruling, the Court decided that such civil union arrangements were not a cause for celebrating the generosity of Californians toward same-sex couples, but grounds for condemning them for “bigotry” and “narrow-mindedness.” The withholding of the name “marriage” was itself the decisive injustice; as the court put it, “the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution.”

Pro-marriage forces immediately swung into action to reverse this radical judicial activism, and succeeded in getting Proposition 8 on the November ballot, a measure to protect the historic definition of marriage as the conjugal union of husband and wife – again with no effect on the existing civil unions law – in the state constitution. The time was short and the struggle was uphill, with the state’s political, legal, and academic elites, as well as the state and national media, opposing Prop 8. But the activist over-reaching of the state supreme court, the sheer nastiness of the campaign against the proposed amendment, superior organizing, and the support of many churches worked to the proponents’ advantage, and the preservation of marriage in California won the November referendum with 52% of the ballots cast. (This, by the way, was despite a grotesquely biased manipulation of the ballot language by California attorney general Jerry Brown that no doubt cost pro-marriage forces five to ten points.)

This is the context in which Barack Obama shaped his approach to the issue of “gay” marriage in the presidential campaign. In 1996, responding to a candidate survey when he first ran for state senator in Illinois, Obama had said, “I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages.” But practically no one knew this fact until very late in 2008—after the election, and even then the national media showed no interest when it came to light. So Obama shifted his public stance on the issue. When California evangelical pastor Rick Warren hosted the August 16 “Saddleback Forum” and asked Obama and McCain (in separate appearances) the same questions, one of them was a request to “define marriage.” The following exchange ensued:

Obama: I believe that marriage is the union between a man and a woman. Now, for me as a Christian—for me—for me as a Christian, it is also a sacred union. God’s in the mix. But—

Warren: Would you support a constitutional amendment with that definition?

Obama: No, I would not.

Warren: Why not?

Obama: Because historically—because historically, we have not defined marriage in our constitution. It’s been a matter of state law. That has been our tradition. I mean, let’s break it down. The reason that people think there needs to be a constitutional amendment, some people believe, is because of the concern that—about same-sex marriage. I am not somebody who promotes same-sex marriage, but I do believe in civil unions. I do believe that we should not—that for gay partners to want to visit each other in the hospital for the state to say, you know what, that’s all right, I don’t think it any way inhibits my core beliefs about what marriage are [sic]. I think my faith is strong enough and my marriage is strong enough that I can afford those civil rights to others, even if I have a different perspective or different view.

Several things are notable about this response. First, Obama never says he is opposed to same-sex marriage; he only identifies himself as “not somebody who promotes same-sex marriage” (which is not where he stood in 1996, though Warren evidently did not know this). He couches his belief that “marriage is between a man and a woman” as religious in character, and therefore entirely personal. Wherever the question might arise whether to support or oppose the legal creation of same-sex marriages, one could certainly not count on Obama’s opposition to it.

Second, when explaining why he is opposed to a constitutional amendment defining marriage as between a man and a woman (and he and Warren appear to be talking about a federal amendment, not Proposition 8), Obama takes a “federalist” line superficially indistinguishable from John McCain’s position: it’s “a matter of state law.” But this elides the essential point in all the years of controversy since the issue of same-sex marriage surfaced in American politics in the 1990s: that in every jurisdiction in which same-sex marriage has so far been adopted, and in most of them in which “civil unions” have been created, it has not been legislators making the change in “state law,” but judges. State constitutional amendments, and the proposed federal marriage amendment (which Obama opposed in the Senate in 2006), have all been efforts to prevent activist judges from inventing a “right” to same-sex marriage and pretending it already exists in state constitutions (or perhaps one day the federal one). Obama surely knows this perfectly well, but studiously ignores it in his exchange with Warren.

Third, Obama declares his support for “civil unions,” identifies the legal recognition of homosexual relationships as a matter of “civil rights,” and parrots the line of the supporters of same-sex marriage that affording gay couples those “rights” works him and others no harm in their own (heterosexual) marriages. But as a former teacher of constitutional law, he surely also knows that civil unions were the wedge employed by the California supreme court to crack open the tradition of marriage and declare that “equality” required the final step be taken from civil unions to full-fledged marriage. Speaking of the “civil rights” of same-sex couples in egalitarian tones, as Obama does, is an invitation to courts to continue this strategy.

Notwithstanding Obama’s implicitly friendly attitude toward the agenda of same-sex marriage, the national media treated the candidate as being actively opposed to gay marriage, supportive of civil unions, and believing that a federal constitutional amendment was merely unnecessary because the states all look after themselves in defining marriage. When the Obama campaign had to deal directly with the issue of whether to support or oppose Proposition 8 in California, it chose opposition. Since the proposed amendment conformed exactly to the position Obama had sought to plant in the public mind at the Saddleback Forum – opposed to gay marriage but leaving civil unions in place – there could have been some difficulty to face in opposing Prop 8. After all, in coming out against Prop 8, which existed solely for the purpose of correcting a judicial misreading of the state constitution, Obama placed himself on the side of creating same-sex marriage rights by judicial fiat. But Obama’s media enablers smoothed the way. The mainstream story line was still that he was “against” same-sex marriage—hadn’t he said as much in the Saddleback Forum?—but merely opposed to the “extreme” step of giving a victory to one side in the debate by “rewriting” a state constitution. Conveniently overlooked was the fact that pro-marriage forces essentially had no choice but to resort to the most fundamental lawmaking strategy after the state’s high court invented a new constitutional right.

Obama’s have-it-both-ways position made it possible for both sides to cite his support in the Prop 8 campaign in California. Automated phone calls from groups advocating Prop 8 mentioned that Obama opposed same-sex marriage. Groups on the other side responded that the candidate had come out against the proposition. One of the happy consequences, from Obama’s point of view, was that neither outcome in California was likely to work him any harm. And so it proved: while 52% of the electorate voted for Prop 8, Obama won California handily, winning many of the same voters who chose to prohibit same-sex marriage.

Relatively little attention was paid during the campaign to another position Obama had taken: advocating the repeal of the Defense of Marriage Act (DOMA) of 1996. DOMA, signed by President Clinton during an election year—the same year Barack Obama declared himself for same-sex marriage when running for state senate in Illinois—consists of two provisions. The first declares that for all purposes under federal law, “marriage” will refer only to a “legal union between one man and one woman as husband and wife.” The second, enacted pursuant to Congress’s power to make laws governing the “Full Faith and Credit” (Art. IV, § 1) each state is obliged to give the public acts and records of its sister states, relieves the states of any requirement to honor same-sex marriages contracted under the laws of other states.

Established principles of interstate jurisprudence have traditionally left some small leeway for states to decline to give effect to marriages made in other states that would violate their own “public policy.” But the advocates of same-sex marriage have made such headway with liberal activist state judges that it was reasonable even a dozen years ago to fear that state constitutional prohibitions might not suffice as a barrier to the movement’s success. Some state judges might ignore such prohibitions on grounds of Article IV “full faith and credit,” denying Congress’s power to permit non-recognition of the entire class of same-sex marriages. Or similarly inclined federal judges, even less institutionally bound by any provisions in state constitutions, might rule in favor of interstate recognition of such unions. Short of a federal constitutional amendment, only a law like DOMA could stop them. It might not be enough; one can well imagine a federal judicial ruling, on grounds of equal protection for instance, either that every state must recognize the same-sex marriages contracted where they have been legalized, or more broadly that there is a federal constitutional right to be married under the laws of each and every state in the Union.

Perhaps DOMA will prove insufficient. But at the present time it stands as an invaluable bulwark against the judicial imposition of same-sex marriage across the entire nation. And President Obama is on record in favor of its repeal. The new White House website declares:

President Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions.

The barest fig leaf remains here of favoring civil unions but not quite endorsing same-sex marriage as such. But the Obama administration is devoted to “equal” status for same-sex couples in every significant respect, for universal application of all the “federal legal rights and benefits” currently available only to married couples, and for repeal of DOMA entirely, including its shield against judicial decisions requiring interstate recognition of same-sex marriages.

The Obama record comes to this: In 1996 state senate candidate Barack Obama was openly in favor of same-sex marriage. In 2006 he voted against a federal marriage amendment in the U.S. Senate. In 2008 presidential candidate Obama declared that he was not a proponent of same-sex marriage, but was careful not to say he opposed it either. He continued to oppose a federal amendment, came out against Proposition 8 in California, and called for the repeal of DOMA, a position he continues to hold as president. No one who understands the legal issues involved with DOMA and the campaigns for state and federal marriage amendments, and who understands the same-sex marriage agenda’s utter dependence so far on activist judges rather than the electoral and legislative processes, can fail to regard the Obama administration as pro-same-sex marriage. If DOMA falls, and federal recognition is given to same-sex unions as equivalent in all but name to marriages, it will only be a matter of months, or a few short years at most, before same-sex marriage is imposed nationwide, in every state and jurisdiction of the Union.

Active participants in the marriage debate understand President Obama perfectly. We who defend the historic tradition of marriage know he is our adversary. “Gay rights” advocates who keep pressing judges to give them a victory know he is completely their friend. Yet somehow the elite media continue to cultivate an image of the president as a “moderate” who occupies the “middle ground” of favoring only “civil unions” and standing fast against “gay marriage.” This presidential image helps one side in the debate – the radical side that would destroy an institution whose history is coterminous with that of human civilization.

Astute political journalists must know better than to believe the image they cultivate. It is hard to avoid the conclusion that they do know better, that they know they are helping the same-sex marriage advocates win the day while also helping President Obama keep those advocates at arm’s length and maintain his popularity with the wider public. But it is essential, for the sake of a candid debate on this vital issue, that the new president be seen not as standing between the contending partisans and above the fray, but as fully invested in the ultimate victory of the radical destroyers of the institution of marriage.

Matthew J. Franck is the Chairman of Political Science at Radford University where he teaches American government, constitutional law, American political thought, and political philosophy. An occasional contributor of articles to National Review Online, Dr. Franck blogs for the “Bench Memos” page and is the author of Against the Imperial Judiciary: The Supreme Court vs. the Sovereignty of the People, published in 1996. A graduate of Virginia Wesleyan College, he received his Ph.D. from Northern Illinois University.