I … was not aware that Eric Holder’s in the business of issuing video communiques about DOJ policy. And there’s a reason for that: He isn’t. A peek at the DOJ’s video page reveals some two dozen clips posted since 2009, only one of which was uploaded after 2011. Nothing on Fast & Furious, nothing about vacuuming up reporters’ phone records to sniff out leaks, nothing even about terror busts. This must be pretty important news, huh?
Not really, no. All he’s doing is letting the public know that the DOJ will continue to recognize gay marriages performed in Utah as lawful while the appeal plays out in the courts. A federal district judge ruled on December 20 that the state’s traditional marriage law is unconstitutional; on Monday of this week, the Supreme Court ordered a halt to gay marriage in the state until the local federal appellate court has weighed in. In the interim, roughly 1,360 gay couples in Utah got married. The governor of Utah responded by ordering state officials not to recognize those 1,360 marriages yet given that the matter’s in dispute. All Holder’s saying here is that the feds won’t follow his lead:
Last June, the Supreme Court issued a landmark decision – in United States v. Windsor – holding that Americans in same-sex marriages are entitled to equal protection and equal treatment under the law. This ruling marked a historic step toward equality for all American families. And since the day it was handed down, the Department of Justice has been working tirelessly to implement it in both letter and spirit – moving to extend federal benefits to married same-sex couples as swiftly and smoothly as possible.
Recently, an administrative step by the Court has cast doubt on same-sex marriages that have been performed in the state of Utah. And the governor has announced that the state will not recognize these marriages pending additional Court action.
In the meantime, I am confirming today that, for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages. These families should not be asked to endure uncertainty regarding their status as the litigation unfolds. In the days ahead, we will continue to coordinate across the federal government to ensure the timely provision of every federal benefit to which Utah couples and couples throughout the country are entitled – regardless of whether they are in same-sex or opposite-sex marriages. And we will continue to provide additional information as soon as it becomes available.
What makes this “big news” isn’t the legal implications, it’s Holder’s (and his boss’s) desire to pander to their pro-SSM base by signaling their disapproval of Utah in an unusually showy way. It’s an essentially political gesture made by an officer who’s not supposed to be political. And of course, it’s gratuitous: No one has a scintilla of doubt that Holder and O are on the side of legalizing gay marriage, and SSM supporters have been successful enough in both the courts and in turning the tide of national opinion that Holder’s expression of solidarity will help them only marginally, if at all. The Utah case could be a big deal if SCOTUS takes it up and finally decides to rule squarely on the constitutionality of gay marriage, but whether the feds do or don’t recognize a certain status among a small group of people during an appeal is not normally the stuff of cabinet members sitting down to face a camera. Read George Will’s column from a few days ago about “gesture liberalism” to understand. Obama loves small-ball fights like the minimum wage and the contraception mandate not because the stakes are huge policy-wise but because they’re ideological flashpoints with the right. This is another one. The backwards conservative state of Utah might not be willing to recognize 2,700 people as married during an appeal but your friendly neighborhood liberal federal government will. Let Eric Holder tell you all about it.
And by the way, his reading of Windsor is debatable. The Court struck down part of DOMA in that case because, it said, the feds have no power to refuse to recognize a marriage that’s already been recognized by the state, as Windsor’s was. (“DOMA seeks to injure the very class New York seeks to protect.”) Utah hasn’t recognized gay marriage yet; a single federal judge there has and his ruling’s already been stayed by SCOTUS. Admittedly, Kennedy’s language in the Windsor case about the due process and equal protection implications of banning gay marriage is so broad that full legalization of gay marriage nationwide seems a fait accompli; Holder’s whole point in mentioning Windsor, I take it, is to suggest that he’s already come to that conclusion himself. But the fact is, SCOTUS hasn’t reached that point yet. If he insists on siding with the lower court instead of with Utah, it’s because he wants to send a message. That’s what gestural liberalism’s all about. Click the image to watch.