Where's the Equal Justice for Gays?

by Joan Vennochi | Boston Globe Columnist / May 28, 2009

PRESIDENT OBAMA had much to say about the glass ceiling he is smashing on behalf of Hispanics and nothing to say about the glass ceiling the California Supreme Court is reimposing on gays.

On Tuesday, Obama announced that he would nominate Sonia Sotomayor, a federal appeals judge in New York, to the Supreme Court. In nominating the daughter of Puerto Rican parents to become the nation's first Hispanic justice, Obama said that when she "ascends those marble steps to assume her seat on the highest court of the land, America will have taken another important step towards realizing the idea that is etched above its entrance: equal justice under the law."

Those are stirring words, and ironic ones, too, given the day's other momentous judicial news: The California Supreme Court upheld Proposition 8, last year's ballot initiative prohibiting same-sex marriage.

Asked about that ruling, White House press secretary Robert Gibbs said he had not spoken to Obama about it, and added, "The issues involved are ones that, ah, you know where the president stands."

On gay rights, as with other controversial issues, Obama stands where it's politically smart to stand. He finds the political sweet spot that placates the left and doesn't alienate the middle.

Obama supports civil unions, not same-sex marriage, a position he embraced as a national candidate. Earlier this year, the political website politico.com produced a questionnaire Obama filled out in 1996 for a Chicago gay and lesbian newspaper. "I favor legalizing same-sex marriages and would fight efforts to prohibit such marriages," Obama wrote in a typed, signed statement.

In what is becoming a pattern, his thinking evolved to a less-liberal stance. As president, Obama has been less than eager to take up a campaign pledge to grant equal federal rights for gay couples; or to reconsider the military's don't-ask-don't-tell policy. As Andrew Sullivan, a prominent blogger and gay rights advocate, recently wrote: "I have a sickeningly familiar feeling in my stomach and the feeling deepens with every interaction with the Obama team on these issues. They want them to go away. They want us to go away."

A year ago, the California Supreme Court ruled that same-sex couples enjoyed the same right to marry as opposite-sex couples. The decision led to Proposition 8, which defines marriage as between a man and a woman and eventually won 52 percent of the vote last November. With this week's ruling, gay marriage advocates pledge to put the issue before California voters yet again.

In Massachusetts, the first state to recognize a legal right to same-sex marriage and the state that stopped a gay marriage referendum from going to the ballot, there is also disappointment with Obama.

Representative Carl M. Sciortino Jr. of Somerville, who went to California to work against Proposition 8, said, "What was frustrating at the time was that Candidate Obama never showed up in California and said, 'That's an outrage . . . it goes too far.' " Now, said Sciortino, "I do hope for and want to see our national leaders being more aggressive in saying discrimination is wrong and the Constitution should not be used to discriminate."

By upholding Proposition 8 in a 6-to-1 ruling, the California Supreme Court did Obama a favor - for now. Just as Obama was nominating a Supreme Court nominee whose detractors are trying to frame her as a liberal activist, California's highest court declared 'that our role is limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values."

The Wall Street Journal editorial board celebrated "that sigh of judicial restraint." Imagine if a majority of justices instead shared the view of the lone dissenter, Justice Carlos R. Moreno, who wrote, "The rule the majority crafts today not only allows same-sex couples to be stripped of the right to marry . . . it places at risk the state constitutional rights of all disfavored minorities."

That's a stirring call for equal justice under the law - what Obama said he believes in with Sotomayor at his side.

Joan Vennochi can be reached at vennochi@globe.com.

National Guard First Lieutenant Dan Choi Protests at President Obama's Hotel in Los Angeles
He is an Arabic-Speaking linguist, a West Point graduate, and a combat veteran of the Iraq War who was fired from the military because he came out of the closet.