How Long For Obama & Marriage Federalism?

By Nick Gillespie, Hit & Run - May 24, 2012

The WashingtonPost askswhether President Obama, having announced his support for legalrecognition of gay marriages, will take the additional step ofarguing that such recognition is constitutionally required. Twoweeks ago, when Obama, in an interview with ABC News, explicitlyendorsedgay marriage for the first time since 1996, he immediately added:

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

And what you're seeing is, I think, states working through thisissue"”in fits and starts, all across the country. Differentcommunities are arriving at different conclusions, at differenttimes. 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 beworked out at the local level, because historically, this has notbeen a federal issue, what's recognized as a marriage.

But as the Post notes, this federalist approachseems to conflict with Obama's position on the Defense of MarriageAct (DOMA). In February 2011, Attorney General Eric Holder said the Obama administration would continue to obey DOMA's banon federal recognition of state-licensed gay marriages but would nolonger defend it in court, having concluded that the provision isunconstitutional. In his ABC News interview, Obama said DOMA "triedto federalize what has historically been state law." But Holder didnot make a 10th Amendment argument against DOMA, saying itimpermissibly intrudes on a power that the Constitution reserves tothe states. Instead he argued that the law violates the guaranteeof equal protection implicit in the Fifth Amendment's Due ProcessClause. Specifically, he said "the President and I have concludedthat classifications based on sexual orientation warrant heightenedscrutiny" and that DOMA's distinction between heterosexual andhomosexual couples could not pass that test. If so, it is hard tosee how the same distinction at the state level could pass musterunder the 14th Amendment's Equal Protection Clause. Stanford lawprofessor Michael McConnell tells the Post:

If you believe the matter should be left to the states, thatmeans you think the Constitution permits the states to take adifferent view. I don't see how that can be squared with AttorneyGeneral Holder's claim.

In fact, Holder and Obama implicitly have staked out a strongerposition regarding state bans on gay marriage than the one taken byU.S. District Judge Vaughn Walker in his 2010 ruling against California's Proposition 8 and theU.S. Court of Appeals for the 9th Circuit in upholding his decision last February. Walker and the 9thCircuit both applied a "rational basis" test, the highlydeferential standard used in equal protection cases that do notinvolve a fundamental right or a "suspect class" such as race.Under this test, the government need only show that the challengedlaw "bears a rational relation to a legitimate end." The factthat Walker and the appeals court nevertheless deemed Proposition 8unconstitutional does not reflect well on the arguments mustered byits supporters. But the standard favored by Obama, "heightenedscrutiny," would make their task even harder, requiring them toshow that a state constitutional amendment eliminating gay couples'right to marry (which had been recognized by the California SupremeCourt) is "substantially related to an important governmentobjective."

Obama may prefer to delay admitting the implications of hisconstitutional case against DOMA until after the election. But ifthe Supreme Court agrees to hear an appeal of the 9th Circuit'sdecision against Proposition 8 during the term that begins inOctober, the Post notes, "it could ask theadministration for its view on whether marriage is a fundamentalright that cannot be withheld from gay couples." A ruling endorsingthat view would "sweep away state decisions on same-sex marriage,as well as the bans in 30 state constitutions," just as the1967 decision in Loving v. Virginia swept away state bans oninterracial marriage. Obama presumably would not have favored"different communities...arriving at different conclusions" aboutthe latter issue. His challenge is to explain why the currentsituation is fundamentally different, which will be hard in lightof the constitutional logic he already has endorsed. 

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

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i look forward to hearing olsen's argument that marrage is acivil right.

Thanks for your input, Mary.

ted olsen isnt mary

If you believe the matter should be left to the states, thatmeans you think the Constitution permits the states to take adifferent view. I don't see how that can be squared with AttorneyGeneral Holder's claim.

I don't see how demands for philosophical consistency can besquared with the Administration's positions on just aboutanything.

Obama will do what he believes is most politicallyexpedient.

How Long Can Obama Continue Supporting a Federalist Approachto Gay Marriage?

As long as it looks like it will pull votes from hisopponent.

I just wish he'd support a federalist approach to almostanything else.

Easy - until money dicates otherwise.

Why do libertarians want the federal government to step in andexpand what is an illegitimate state function to begin with?

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