hillaryI listened to the Clinton interview and have been following much of the commentary. The linked post from HuffPost (Stein and Bendery) is an interesting post which left me recognizing that the battle for marriage is far from over. Here is a clip:

For leaders in the LGBT community, including some Clinton backers, her answer gave the impression that she doesn’t see a constitutional right to marry for same-sex couples.

Personally, I don’t get this from Clinton’s comments at all! In my opinion, she was talking historically, and referencing about where she was with her thinking, rather than making any comment about her feelings now. Here are Clinton’s comments:

“So, for https://thomascwaters.com/wp-admin/admin.php?page=all-in-one-seo-pack/aioseop_class.phpme, marriage had always been a matter left to the states,” Clinton said. “And in many of the conversations that I and my colleagues and supporters had, I fully endorse the efforts by activists who work state by state, and in fact that is what is working.”

Later in the HuffPost post they say this:

But the question raised by Clinton’s interview is how she thinks strategically about litigating the future of same-sex marriage. And on this, she appears to have placed herself in the less aggressive camp.

“We very much see marriage equality as a federal issue,” said Fred Sainz, vice president for communications and marketing for the Human Rights Campaign, which has worked closely with Olsen and Boies. “While it’s certainly true that the regulation of marriage has traditionally been an issue left to the states, the denial of marriage equality is most certainly a federal issue. That’s why federal claims — lack of equal protection and due process — are being made in federal courts and federal judges are agreeing.”

To me, this says that some folks are really nervous about the future of Marriage Equality. While some of us are riding high on a wave on continuously positive judicial rulings, many on the national scene are sweating bullets about how we bring this to completion. I am not necessarily disagreeing, but the level of concern is a bit worrying to me.

But before moving on to the future of Marriage Equality, I want to focus on one other thing Clinton said that I feel was extremely important:

I did not grow up even imagining gay marriage and I don’t think you probably did either. This was an incredibly new and important idea that people on the front lines of the gay rights movement began to talk about and slowly but surely convinced others of the rightness of that position. And when I was ready to say what I said, I said it.

First of all, I value Clinton’s candor and authenticity. As a gay man, I didn’t grow up imagining gay marriage either. Clinton demonstrates what most of us know even if we wish it were different. Politicians like everyone else have to come to understand an idea before they can support and defend it. Not really such a novel idea, but I’m always amazed that so many activists just expect people to be all for LGBTQ rights, immediately.

Secondly, activism works. Stand firm in what you believe and keep advocating for change, and it can happen.

OK, back to the notion of the future of Marriage Equality litigation- what Sten and Bendery and others are so concerned about. In the end, the US Supreme Court is going to make the decision, not you or me or Clinton, and that lack of control is pretty hard to deal with. Too, the case will most likely end up in front of the Court before any Clinton nominee is added to the Court.But that said, it is essential that we see strong support through out leadership for Marriage Equality. So they want it from Clinton.

So, far, it isn’t clear if any rulings for Marriage Equality rest solely on a constitutional right to marriage. Most rest on a constitutional right to equal access, and the basis of the decision will be critically important when looking at how much pressure it will face and how controversial it is following the ruling.

Many point to a similar controversial issue, abortion and the Federal case Roe v Wade where the decision to uphold a woman’s right to an abortion is based on a right to privacy:

The Court declined to adopt the district court’s Ninth Amendment rationale, and instead asserted that the “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[26] Douglas, in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, “The Ninth Amendment obviously does not create federally enforceable rights.”[27]

Opponents to abortion and even some who support the outcome claim that the judicial reasoning was shaky. So people looking towards Marriage Equality are looking for a firm and stable constitutional foundation for same-sex marriage.

So, the stakes are pretty high if every word spoken by a Presidential candidate (or possible candidate) is going to get scrutinized and evaluated for what I might mean.

What do we do moving forward? Clinton’s interview tells us. Be the activists who continue to place an important idea before the American people such that more and more people come to understand it.

Clinton’s Gay Marriage Interview Was Controversial Because Of Substance, Not Tone.

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