Obama’s “Evolution” Towards Supporting Same-Sex Marriage, and filing a brief in Prop 8 Case

April 17th, 2014

The Times Magazine has a feature based on a new book, Forcing the Spring: Inside the Fight for Marriage Equality, that discusses the President’s “evolution” towards supporting same-sex marriage. I put “evolution” in quotes because it does not seem, in the least, to have been an evolution in the sense that views evolved. Rather, the “evolution” was in terms of politics, and when it would be societally and politically acceptable for publicly voicing this opinion.

As early as 1996, State Senator Obama was clearly and steadfastly in favor of SSM. But as his political “ambitions grew,” that position retreated.

Indeed, long before Obama publicly stated that he was against same-sex marriage, he was on the record supporting it. As an Illinois State Senate candidate from Chicago’s liberal Hyde Park enclave, Obama signed a questionnaire in 1996 saying, “I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages.” But as his ambitions grew, and with them the need to appeal to a more politically diverse electorate, his position shifted.

In the course of an unsuccessful run for a House seat in 2000, he said he was “undecided” on the question. By the time he campaigned for the presidency, he had staked out an even safer political position: Citing his Christian faith, he said he believed marriage to be the sacred union of a man and a woman.

This story makes it really, really difficult to stomach attacks on Brandon Eich. At the exact moment Eich gave $1,000 to support Prop 8, Obama was in the exact same position. They both professed a belief in their Christian faith which led to opposition to same-sex marriage. It seems only one of them truly held that belief.

By 2011, with the tides beginning to turn, Obama started to sense that it may be more acceptable to take the “evolving position.”

Griffin and a team of veteran political operatives were using the litigation to mount a campaign intended to frame same-sex marriage as a civil right. They were working to create a political climate that would make the Supreme Court, which was disinclined to get too far out in front of public opinion, comfortable enough to rule in their favor. But the president was standing in their way. His opposition to same-sex marriage had been cited repeatedly by Proposition 8’s defenders as evidence that people who wanted to retain the traditional definition of marriage were not motivated by prejudice. Though Obama had recently taken to saying that his views on the matter were “evolving,” Griffin worried that they were moving too slowly to help with his cause. …

When Obama finally arrived, he willed himself to be direct.

“Mr. President,” he said, “how can we help you evolve more quickly?”

When I spoke with Griffin a few days later, he recalled Obama’s saying, “I think you can tell from what I have done so far the direction that I am headed.” …

“The sense I got from him,” Griffin said, “was, ‘Give me credit — look what I have already done.’ ” But Obama’s campaign for a second term was in full swing, and he was not going to be pushed any further on the issue. A few months later at a fund-raiser in Los Angeles, Griffin had a private conversation with Michelle Obama, in which she indicated that her husband had given as much support as he could at the time.

Her message, he told his team, was clear: “Hang in there with us, and we’ll be with you after the election.”

The “civil rights issue of our day” could wait until “after the election.” Excuse me if I’m not persuaded.

Ultimately, what led the “evolution” to hasten was the election itself, and the recognition that more votes were to be had by posturing towards support of SSM, but not really supporting it.

But by November 2011, it was becoming increasingly clear that continuing to sidestep the issue came with its own set of costs. The campaign’s internal polling revealed that the issue was a touchstone for likely Obama voters under 30. The campaign needed those voters to turn out in the record numbers they had four years earlier, and the biggest impediment was Obama’s refusal to say he favored allowing gay couples to wed.

“We understood that this would be galvanizing to some voters and be difficult with other voters,” said Jim Messina, the manager of Obama’s 2012 campaign.

Then, and only then, was the President willing to tell people where he actually stood (in most quarters outside the Beltway this would be called telling the truth):

Caught between countervailing political forces, Obama called his top aides together and said that if asked again for his position, he both wanted and needed to drop the pretense and tell people where he really stood.

“The politics of authenticity — not just the politics, but his own sense of authenticity — required that he finally step forward,” Axelrod said. “And the president understood that.”

Only in Washington could the civil rights era of our day be defined by the “politics of authenticity.” After polling of thousands of Republicans, and discussions with Ken Melhman, the former RNC chair, who was gay, the President’s braintrust started to formulate a plan of how to announce the “evolution.”

Michelle Obama, and Valerie Jarrett urged the President to go public with his views. In fact, the First Lady “quiet[ly]” attended a gay wedding.

Inside the White House, the first lady urged her husband to declare his support for same-sex marriage. The Obamas had a number of gay friends, and though the White House kept it quiet, the first lady attended a wedding celebration for her hairdresser when he married his husband. She felt strongly that her husband had the power to transform the national conversation on marriage equality. And it was not lost on the president that his failure so far to do that was “a source of disappointment to people who otherwise appreciated him,” Axelrod said. Valerie Jarrett, a longtime friend of the Obamas and a top adviser who served as the president’s liaison to gay voters, also encouraged him to go public. This is consistent with who you are, she told him.

Even as right-wingers like Laura Bush came out in support of same-sex marriage, the White House was still concerned about the political risks in the upcoming election.

But for all the political and corporate cover, Obama’s political advisers remained worried that the costs outweighed the benefits — a fear that intensified as it became clear that North Carolina, a battleground state that Obama narrowly won in 2008, was poised to easily pass a constitutional amendment banning same-sex marriage.

“This was so past the sell-by date,” one senior administration official said of the timing of an announcement by the president, “yet there was still no real plan in place. It just shows you how scared everyone was of this issue.”

But, then Biden happened. The book recounts Vice President Biden’s own evolution.

It was clear from Biden’s body language that the question made him uncomfortable. His public position was no different from the president’s. As a senator, Biden voted for the Defense of Marriage Act. As a presidential candidate himself, he said he supported civil unions. And as the vice president, he had studiously toed the administration’s shifting line. ..

“Things are changing so rapidly, it’s going to become a political liability in the near term for an individual to say, ‘I oppose gay marriage.’ Mark my words.”

Having started down this road, he seemed incapable of stopping. People his children’s age could not understand why gay couples should not be allowed to marry, he said. “ ‘I mean, what’s the problem, Dad?’

“And my job — our job — is to keep this momentum rolling to the inevitable.”

The answer stunned everyone in the room, even top aides who were used to the gaffe-prone vice president’s habit of going off script.

Two weeks later, during an interview on meet the Press, Vice President Biden said that he supports same-sex marriage.

“What this is all about is a simple proposition,” he told Gregory. “Who do you love, and will you be loyal to the person you love? And that’s what people are finding out is what all marriages at their root are about.”

“And you’re comfortable with same-sex marriage now?” Gregory pressed.

“I, I — look — I am vice president of the United States. The president sets the policy. I am absolutely comfortable with the fact that men marrying men, women marrying women and heterosexual men and women marrying one another are entitled to the same exact rights, all the civil rights, all the civil liberties.”

This was more of a “my job” than “our job” line. And it set the White House into shock.

One of Biden’s advisers told him, “I think you may have just gotten in front of the president on gay marriage.”

Contrary to what some suspected, this was not an intentional test balloon. Biden went for it himself.

Political commentators immediatelybegan to speculate that Biden’s remarks were either intended as a trial balloon or had specifically been cleared by the White House to mollify gay voters without the president’s having to take a position. Neither was the case. When the White House press team received a transcript of the interview, tempers flared. Jarrett, who was still hoping that Obama might make a groundbreaking pre-election announcement, accused Biden through an intermediary of disloyalty. Campaign officials were also agitated. “They felt they already were vulnerable,” one White House official told me, “and they had not fully resolved yet what they wanted to do.”

And rather than embracing Biden’s comment, the White House tried to walk it back!

The White House quickly tried to walk back Biden’s comments. “What VP said — that all married couples should have exactly the same legal rights — is precisely POTUS’s position,” Axelrod tweeted on Sunday, May 6, the day Biden’s interview aired. Biden’s office was told to put out a “clarification” echoing that sentiment: “The vice president was expressing that he too is evolving on the issue,” it said. …

Griffin’s question had inadvertently set off a chain reaction. Obama and his team knew that he had to take a stand, soon, or risk looking as if he were “leading from behind,” a portrayal the White House hated.

Curiously enough, the first lady saw Biden’s comment as liberating:

Some of Obama’s top advisers urged him to take Biden to task for forcing his hand, but he refused. The first lady saw the whole thing as a blessing in disguise. The endless debate was over. You don’t have to dance around this issue anymore, she told her husband over breakfast on Wednesday, in a conversation she relayed afterward to several top White House officials. “Enjoy this day,” she said as he headed off for his interview. “You are free.”

I previously commented on similar remarks in Game Change II, that the President was “angry” with Biden for jumping the gun on Meet the Press.  I’ve long suspected that Biden’s blunder nudged the President to come out in support of gay marriage. I’m glad to see my intuitions confirmed.

Afterwards, the President did the interview with Robin Roberts, and came out, partially, in support of same-sex marriage.

Mindful of the voters there and in other swing states with similar bans, the president emphasized that he had no desire to “nationalize” what he called the “healthy debate” taking place across the country.

“I continue to believe that this is an issue that is going to be worked out at the local level, because historically this has not been a federal issue, what’s recognized as a marriage.”

But as a personal matter, he said, he now believed that gay couples should be able to marry. He told Roberts that he would have “probably” endorsed same-sex marriage before the election, and that the vice president just “got out a little bit over his skis.”

And the rest is, well, history.

As Dan Pfeiffer, the White House communications director at the time, put it: “It was the bomb that didn’t go off.”

There is also some SCOTUS-related tidbits, focusing on Chuck Cooper’s argument in the Prop 8 case:

But Griffin’s optimism quickly gave way the next day when Charles J. Cooper, the Washington-based lawyer charged with defending the constitutionality of Proposition 8, filed an opening brief with the Supreme Court, citing the president’s interview with Robin Roberts to argue that bans like Proposition 8 were not motivated by impermissible prejudice. Cooper’s brief quoted Obama as saying that those who opposed same-sex marriage were not coming at it “from a meanspirited perspective,” and it used Obama’s “healthy debate” language to argue that this was a matter for voters and legislatures to decide, not the courts.

And interestingly enough, it was Boise and Olson who wanted the President to make the final push, by having the SG file a brief with the Supreme Court.

Furious, Griffin fired off a sharply worded news release criticizing the statement. He also privately arranged for him and Boies to meet with Jarrett and Kathryn Ruemmler, the White House counsel. Boies and Olson felt it was imperative that Obama take one final step in his evolution, by having his solicitor general file a brief with the Supreme Court clearly stating that the administration believed that bans like Proposition 8 were not just bad policy, but they also violated the Constitution.

In preparing for the White House meeting, Olson encouraged Boies and Griffin to emphasize the importance of the case to Obama’s legacy. But when Griffin asked his friend and former business partner Kristina Schake, who was now the first lady’s communications director, about that strategy, she discouraged it: The president is capable of assessing his legacy without your input, she told him. Focus on the law, she said, and why bringing in the solicitor general would make a difference legally.

At the meeting, Boies did just that, discussing Obama’s inaugural speech in the context of their legal strategy. Now that Obama had said what he said, Boies argued, “silence would not be considered neutral.” It would, in fact, be deeply harmful, signaling that even someone as friendly to gay voters as Obama considered their argument a bridge too far. It could cost them the case.

“It’s already being used against us,” Boies said, citing Cooper’s brief.

Both women seemed impressed by their pleas. But before they left, Boies said, Jarrett made it clear that further lobbying via the press would not be helpful. This was now a legal decision, she said, not a political one.

Then, the Solicitor General and the Attorney General met with the President. Remarkably, the book says that Obama aimed the brief directly at Justice Kennedy, and hatched the so-called “Eight-State Solution.” This is exactly the position the SG advocated:

Holder and Verrilli then met with the president and Ruemmler, his White House counsel, and Denis McDonough, his chief of staff, for more than an hour in the Oval Office to go over the Justice Department’s recommendation. “This was not a briefing,” Holder recalled. “This was a meeting of equals in terms of knowledge of the facts, knowledge of the law.”

The president did not need to be persuaded on the larger moral question; whatever he may have said in the past, he, too, saw the marriage debate through the prism of civil rights, according to Ruemmler and Holder. But Obama wanted to offer Kennedy and the rest of the justices an incremental way to decide the Proposition 8 case that would not force them to overturn bans across the country, a position that he worried the court would find untenable. They arrived at what they referred to as the “eight-state solution.” States needed a justification when they singled out a class of citizens for differential treatment. The plan was to file a brief with the Supreme Court arguing that in states that recognized same-sex domestic partnerships, it was particularly irrational to ban marriage because doing so could not be said to further any governmental interest. In addition to California, that argument would cover Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. “By the time we leave” that meeting, Holder recalled, “we know what position we’re taking, what our strategy is.”

The article closes the circle very nicely:

After hanging up with Ruemmler, he thought back to May 2009, the day he announced the Proposition 8 lawsuit at a news conference in Los Angeles. Afterward, he drove across town to an Obama fund-raiser. When it was his turn to shake the president’s hand, he used the opportunity to begin what would become his mission to win Obama’s support.

“Mr. President, we just filed a case challenging the constitutionality of California’s ban on same-sex marriage,” he recalled saying. “We certainly hope you will be with us on this.” It had taken four years and a profound shift in public opinion, but the president was, at last, with them.

A fascinating story of constitutional and political change.