Obama's Gay Marriage Contradiction

The president's constitutional logic implies that state bans must be overturned.

Last month, when President Obama finally endorsed gay marriage after years of equivocation, he emphasized that he still thinks states should be free to address the issue as they see fit. Since many voters strongly oppose gay marriage, it is clear why Obama advocates a federalist approach to the question. But it is not clear that he logically can.

Obama's inconsistency is illustrated by two cases involving gay marriage that the Supreme Court could hear during its next term. Two weeks ago, the U.S. Court of Appeals for the 1st Circuit overturned a law that prohibits federal recognition of state-licensed gay marriages, and last week the U.S. Court of Appeals for the 9th Circuit declined to reconsider a case in which it ruled against California's ban on gay marriage.

The 1st Circuit case involves Section 3 of the Defense of Marriage Act (DOMA), which the Obama administration stopped defending last year after concluding it is unconstitutional. During the same May 9 ABC News interview in which he declared that "same-sex couples should be able to get married," Obama said DOMA "tried to federalize what has historically been state law."

But Obama does not argue that DOMA violates the 10th Amendment by impermissibly intruding on a power that the Constitution reserves to the states. Instead he says the law violates the guarantee of equal protection implicit in the Fifth Amendment's Due Process Clause.

As Attorney General Eric Holder explained in a February 2011 letter, "the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny" under the Due Process Clause and that DOMA's distinction between heterosexual and homosexual couples fails that test. If so, it is hard to see how the same distinction at the state level could pass muster under the 14th Amendment, which says "no state shall...deny to any person within its jurisdiction the equal protection of the laws."

"If you believe the matter should be left to the states," Stanford law professor Michael McConnell recently told The Washington Post, "that means you think the Constitution permits the states to take a different view. I don't see how that can be squared with Attorney General Holder's claim."

In fact, Holder and Obama implicitly have staked out a stronger position against state bans on gay marriage than the 9th Circuit did. Under the heightened scrutiny favored by Obama, the government must show that a legal distinction based on sexual orientation is "substantially related to an important government objective."

The 9th Circuit, by contrast, applied the "rational basis" test, the standard typically used in equal protection cases that do not involve a fundamental right or a "suspect class" such as race. Under that standard, the government need only show that the challenged law "bears a rational relation to a legitimate end."

The appeals court concluded that Proposition 8, a 2008 ballot initiative that amended the state constitution to reverse a California Supreme Court decision allowing gay couples to marry, failed even this highly deferential test because it did not accomplish anything that was plausibly related to its ostensible goals. Under California's "domestic partnership" law, gay couples retain the same rights as straight couples, except for the right to call their relationship a marriage. Since Proposition 8's sole effect was to remove that label, the court reasoned, its only justification was to mark gay marriages as morally inferior—an illegitimate end under the Equal Protection Clause. 

This analysis is unlikely to apply elsewhere because California's combination of a strong domestic partnership law with a constitutional amendment rescinding gay marriage rights is unusual, if not unique. But many other states' gay marriage bans could be vulnerable under the heightened scrutiny that Obama applied to DOMA.

Obama may wish to avoid the implications of his constitutional logic until after the presidential election. But if the Supreme Court agrees to hear the California case this fall and asks the solicitor general to weigh in, that may not be possible.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. Follow him on Twitter.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Ragnar||

    This article overlooks the obvious.

    Article IV, Section 1

    "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

    An Act in one state must be recognized by all. This is why a marriage license in Virginia is valid in New York. A gay marriage should work the same.

  • Bee Tagger||

    Common Law marriage certainly doesn't work this way.

  • Fist of Etiquette||

    Are common law marriages the result of an act, record or proceeding? I thought they just happened because someone didn't kick his old lady out of the trailer in a timely manner.

  • Bee Tagger||

    New York's processes are especially weird: http://schlissellaw.wordpress......-new-york/

  • R C Dean||

    Are common law marriages the result of an act, record or proceeding?

    They can be. In Texas, at least, there are two ways to get a common law marriage: by living together, holding yourself out as married, etc., or by declaration (registering at the county courthouse without having a ceremony). The latter probably counts as a record.

    As we know, licenses (which would include marriage licenses) are not required to be recognized in other states. CCW and professional licenses are strictly state by state.

  • gary47290||

    Marriage is recognized under the principle of comity, not FFC.

  • Mickey Rat||

    "An Act in one state must be recognized by all."

    Not necessarily. See the second sentence of your quote. That part of DOMA still stands as constitutional.

  • Dovahkiin||

    Is it just me, or does that carpet look an awful lot like the Chinese flag?

  • Chuck Anziulewicz||

    Sure, the Constituion does not address the issue of marriage. There is no Constitutional "right" for anyone, Gay or Straight, to get married. But the Supreme Court has said that marriage is one of the basic human rights of man, and the federal government provides MOST of the legal benefits and protections to married couples, those benefits having to do with tax law, Social Security, child custody, medical care, inheritance, etc. etc. So why should law-abiding, taxpaying Gay couples should help subsidize all the legal benefits that Straight couples have always taken for granted, when we are prevented from taking part in those same incentives to marry? How can such differing legal standards be Constitutional under the 14th Amendment?

  • Bill||

    I'm not sure that Federal tax law is actually a benefit for married couples.

  • Rich||

    Indeed. My cousin is opting for a "committed relationship", complete with ring ceremony, because the "benefits" of a "real marriage" are so, um, great.

    I am trying to find a comprehensive list of the benefits and penalties incurred in legal marriage.

  • R C Dean||

    the federal government provides MOST of the legal benefits and protections to married couples, those benefits having to do with tax law, Social Security, child custody, medical care, inheritance, etc. etc.

    Umm, most of these are state, not federal, law.

  • Mo' $parky||

    Robin Roberts looks positively Lincolnesque in that picture.

  • Eduard van Haalen||

  • Bee Tagger||

    She looks like an excuse to capitalize on the public's recent interest in zombies in popular media?

  • SugarFree||

    Who that in the article pic with Obama? Is that the guy he's planning on getting gay-married to?

  • Pagan Priestess||

    I totally thought Obama was getting gay married to Kal Penn.

  • T o n y||

    Hey libertarians, not everything happening on the planet is about Obama! It's like you're obsessed or something.

  • Mr. FIFY||

    If Romney wins, it'll be your Team's turn to obsess over him for the next four years.

  • ||

    Inorite? It's like ever since he was elected president, all of a sudden libertarians care about what he does or something.

  • Bucky||

    hows about a heightened scrutiny of following the Constitution?

  • Mr. FIFY||

    Hmmm... that common-law marriage thing. Sounds like a good way to give whiny gays like Tony what they want.

  • ||

    Gee, a politician wants it both ways, Imagine that.

  • Eduard van Haalen||

    He's bi?

  • free running shoes||

    From kids for being capable to elders, nearly absolutely everyone, like Nike Free Run 2 Women, well known for its sports activities sneakers.

  • Mr. FIFY||

    I am interest, and would like your newsletter to enter my brain.

  • DJK||

    Why is Sullum so surprised about the inconsistency? It's a great way for Obama to take a loose stand on gay marriage without committing himself to any position on federalism. If there's one thing this President is good at, it's playing both sides of an issue. And people will let him get away with it. So why does Sullum think that logic should enter into the picture? It's all political pandering.

  • bobbean||

    my buddy's mother brought home $17612 past month. she has been making cash on the internet and moved in a $580200 house. All she did was get blessed and profit by the steps shown on this site Nuttyrichdotcom

  • Bucky||

    smells like one of those Nigerian phone scams...

  • Robert Hagedorn||

    Google First Scandal.

  • ||

    This analysis is unlikely to apply elsewhere because California's combination of a strong domestic partnership law with a constitutional amendment rescinding gay marriage http://www.lunettesporto.com/l.....c-3_6.html rights is unusual, if not unique. But many other states' gay marriage bans could be vulnerable under the heightened scrutiny that Obama applied to DOMA.

  • gary47290||

    If the opinion of the Ninth Circuit stands (under Rational Basis review), then we don't need to worry about the President and Attorney General's opinion that sexual orientation discrimination requires heightened scrutiny.

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