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. 

NEXT: George Soros and Other Lefty Moneybags Types Aren't Primarying Lousy Old Democrats Because the Party Is More Ideologically Diverse! Wait, What?

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  1. i look forward to hearing olsen's argument that marrage is a civil right.

    1. Thanks for your input, Mary.

      1. ted olsen isnt mary

  2. 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.

    I don't see how demands for philosophical consistency can be squared with the Administration's positions on just about anything.

  3. Obama will do what he believes is most politically expedient.

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

    As long as it looks like it will pull votes from his opponent.

    1. I just wish he'd support a federalist approach to almost anything else.

  5. Easy - until money dicates otherwise.

  6. Why do libertarians want the federal government to step in and expand what is an illegitimate state function to begin with?

    1. Would it improve the situation if, say, black people weren't allowed to marry Asian people? Because I think that it where your reasoning leads.
      If we are going to have marriage laws, they need to be equally applied and not discriminate. I pretty much take it as a given that the state is never going to get out of marriage, so equal protection is what I would focus on.

      1. Let me put that another way so it doesn't sound like I am calling you a bigot. If people with names beginning with F were forbidden to marry, would that advance the cause of liberty?

        1. Certainly not. I'm not suggesting to forbid anyone from marrying. I'm simply suggesting that further government involvement in marriage, espcially the nationalization of it, is antithetical to the cause of liberty and equality. Not issuing a state license or not affording benefits for behavioral choices (the choice to marry) neither advances nor hinders the cause of liberty. However, the act of taking from people to afford benefits for a behavioral choice is antithetical to liberty.

      2. "If we are going to have marriage laws, they need to be equally applied and not discriminate."

        The marriage laws are equally applied. Homosexual pairings are not equivalent to heterosexual pairings, therfore any discrimination is justified by the circumstances.

    2. why? Because we accept reality. Silly as some laws are, thinking people understand that repealing them is highly unlikely. Absent that, we simply ask that the govt live up to its own ideals of equal protection under the law and protect one's right to pursue happiness.

      1. I don't see this as promoting equality. As a single person, should I have to subsidize a decision you made to enter into a long term relationship with someone else? Whether you're gay or not is irellevant. Just like Medicare or Medicaid, this is a program that is designed to discriminate by definition. It already discriminates against single people, polygamists, etc. Nationalizing it will only make it worse. But I guess we're only interested in protecting one group of people for the sake of fighting a cultural war. "All animals are equal, but some are more equal than others." I really think some of you let your own personal cultural views get the better of your judgement on this issue.

    3. There's no reason we can't attack it from both angles.

      1. One angle of attack weakens the other angle of attack. And the majority of libertarians' angle of attack undermines equalty, not strengthens it. See above.

  7. It seems to me that if there is anything in the constitution that requires states to at least recognize gay marriages from other jurisdictions, it is the "full faith and credit" thing.

    And why the hell hasn't DOMA been struck down yet if the DOJ won't defend it? IF Obama had any balls on this issue, he'd at least call for the repeal of DOMA

    1. IF Obama had any balls on this issue,

      or any issue that did not involve taking the earnings of one person by force.

  8. Why is Holder deciding whether or not a federal law is constitutionally sound? That's not his fucking job. That's what the courts are for.

    And this episode reminds you just how unbelievably full of shit Obama is. On the one hand, he can't interfere with Federal law when it comes to enforcing drug laws so he doubles up on medical marijuana dispensary raids, but he decides not to defend DOMA in court because he believes it isn't constitutional.

    And the left just ignores it as they swoon under his spell.

  9. OT: did someone on Reason already trash the EJ Dionne book, and I missed it?

    If not, please somebody at reason, read this book so I don't have to. It looks like a real underhanded pitch that you should be able to knock out of the park.

    1. Our Divided Political Heart will be the must-read book of the 2012 election campaign. Offering an incisive analysis of how hyper-individualism is poisoning the nation's political atmosphere, E. J. Dionne Jr. argues that Americans can't agree on who we are because we can't agree on who we've been, or what it is, philosophically and spiritually, that makes us Americans. Dionne takes on the Tea Party's distortions of American history and shows that the true American tradition points not to radical individualism, but to a balance between our love of individualism and our devotion to community.

      Dionne offers both a fascinating tour of American history?from the Founding Fathers to Clay and Lincoln and on to the Populists, the Progressives and the New Dealers?and also an analysis of our current politics that shatters conventional wisdom. The true American idea, far from endorsing government inaction or indifference, has always viewed the federal government as an active and constructive partner with the rest of society in promoting prosperity, opportunity, and American greatness.

      The review really writes itself.

    2. Review:

      Reason to Dionne: DROP DEAD


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