How Long Can Obama Continue Supporting a Federalist Approach to Gay Marriage?


The Washington Post asks whether President Obama, having announced his support for legal recognition of gay marriages, will take the additional step of arguing that such recognition is constitutionally required. Two weeks ago, when Obama, in an interview with ABC News, explicitly endorsed gay marriage for the first time since 1996, he immediately added:

Part of my hesitation on this has also been I didn't want to nationalize the issue. There's a tendency when I weigh in to think suddenly it becomes political and it becomes polarized.

And what you're seeing is, I think, states working through this issue—in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that's a healthy process and a healthy debate. And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what's recognized as a marriage.

But as the Post notes, this federalist approach seems to conflict with Obama's position on the Defense of Marriage Act (DOMA). In February 2011, Attorney General Eric Holder said the Obama administration would continue to obey DOMA's ban on federal recognition of state-licensed gay marriages but would no longer defend it in court, having concluded that the provision is unconstitutional. In his ABC News interview, Obama said DOMA "tried to federalize what has historically been state law." But Holder did not make a 10th Amendment argument against DOMA, saying it impermissibly intrudes on a power that the Constitution reserves to the states. Instead he argued that the law violates the guarantee of equal protection implicit in the Fifth Amendment's Due Process Clause. Specifically, he said "the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny" and that DOMA's distinction between heterosexual and homosexual couples could not pass that test. If so, it is hard to see how the same distinction at the state level could pass muster under the 14th Amendment's Equal Protection Clause. Stanford law professor Michael McConnell tells the Post:

If you believe the matter should be left to the states, 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 regarding state bans on gay marriage than the one taken by U.S. District Judge Vaughn Walker in his 2010 ruling against California's Proposition 8 and the U.S. Court of Appeals for the 9th Circuit in upholding his decision last February. Walker and the 9th Circuit both applied a "rational basis" test, the highly deferential standard used in equal protection cases that do not involve a fundamental right or a "suspect class" such as race. Under this test, the government need only show that the challenged law "bears a rational relation to a legitimate end." The fact that Walker and the appeals court nevertheless deemed Proposition 8 unconstitutional does not reflect well on the arguments mustered by its supporters. But the standard favored by Obama, "heightened scrutiny," would make their task even harder, requiring them to show that a state constitutional amendment eliminating gay couples' right to marry (which had been recognized by the California Supreme Court) is "substantially related to an important government objective."

Obama may prefer to delay admitting the implications of his constitutional case against DOMA until after the election. But if the Supreme Court agrees to hear an appeal of the 9th Circuit's decision against Proposition 8 during the term that begins in October, the Post notes, "it could ask the administration for its view on whether marriage is a fundamental right that cannot be withheld from gay couples." A ruling endorsing that view would "sweep away state decisions on same-sex marriage, as well as the bans in 30 state constitutions," just as the 1967 decision in Loving v. Virginia swept away state bans on interracial marriage. Obama presumably would not have favored "different communities…arriving at different conclusions" about the latter issue. His challenge is to explain why the current situation is fundamentally different, which will be hard in light of the constitutional logic he already has endorsed. 

Scott Shackford recently discussed federalism vs. nationalization as applied to gay marriage and interracial marriage.