Gay marriage shifts through the sands of time

Former President Bill Clinton is all over the country these days, stumping for President Barack Obama's re-election bid.

From the Democratic convention in Charlotte, N.C., to the Springs Preserve in Las Vegas, it's often said Clinton makes a better case for Obama's second term than the president himself.

And that's just a little ironic, given that Obama has spent much of his presidency undoing Clinton-era rules that limited gay rights.

For example, yet another appellate court has ruled that the 1996 Defense of Marriage Act is unconstitutional. On Thursday, the 2nd U.S. Circuit Court of Appeals (in Manhattan) ruled that DOMA discriminates against same-sex couples by denying them equal benefits. The case arose when the Internal Revenue Service denied a woman a tax deduction available to straight couples when she inherited her late partner's estate.

(Irony alert! Democratic opposition to elimination of the estate tax helped score an important victory for gay civil rights!)

"Homosexuals are not in a position to protect themselves from the discriminatory wishes of a majoritiarian public," wrote Judge Dennis Jacobs.

That follows a May ruling from the 1st Circuit Court of Appeals in Boston, which said Congress had made an "effort to put a thumb on the scales and influence a state's decision as to how to shape its own marriage laws."

The Supreme Court ultimately will decide the issue. But it's important to remember that Obama in February 2011 decided the law was unconstitutional, and therefore directed Justice Department attorneys to stop defending it in court. That unusual move - the Constitution stipulates that the president shall take care that the laws are faithfully executed - earned Obama plenty of criticism, including from this writer. But his judgment seems to be shared by at least two federal appellate panels.

That's not the only area where Obama repealed a Clinton creation. The military's infamous "Don't Ask, Don't Tell" policy was concocted under Clinton in 1993. It was a compromise - Clinton had campaigned on a promise to allow gays to serve openly in the military. Instead, opposition forced Clinton to embrace a halfway step, one that saw more than 13,000 soldiers, sailors, airmen, Marines and Coast Guardsmen discharged for violations.

But under Obama, it was repealed.

It's likely that if Clinton were serving in office today, he'd have acted similarly to Obama. "Don't Ask, Don't Tell" was probably the best he could get in 1993, and the Defense of Marriage Act - an indefensible federalization of an issue that should never have rested there - was part of the post-1994 Republican revolution in which Clinton sought to compromise with his ideological opponents. Both were long overdue to be tossed out, and while we may quibble with the way they were discarded, the fact is, we're better off because they were. For that reason, it's likely there won't be much friction between Clinton and Obama. (In fact, it's not inconceivable Clinton might announce his thanks to Obama for finishing in modern times what could not be accomplished in the 1990s.)

By way of contrast, it should here be noted that Republican presidential nominee Mitt Romney not only opposes gay marriage and civil unions, he wants a federal constitutional amendment to restrict marriage to opposite-sex couples!

In true Romney style, of course, he favors domestic partnerships that would allow things such as hospital visitation rights.

Thus it wasn't always: When running for U.S. Senate in 1994, Romney claimed he'd be better on gay rights than his then-Democratic foe, Ted Kennedy.

This time around? Not so much. What a difference 18 years makes.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter (@SteveSebelius) or reach him at 387-5276 or SSebelius@reviewjournal.com.