The President’s Still Contorted Position on Same-Sex Marriage

Given the legal principles involved in recognizing same-sex relationships as marriages, it’s hard to see any coherence in President Obama’s statement.

The president has recently received a good deal of credit from liberal commentators for having come out clearly in support of same-sex marriage. Having once opposed it, and having more recently said that his position was evolving, he has now said that he is in favor of it. The credit he is getting for this supposedly brave stand is undeserved, however, because the president’s position is still, on a close examination, very muddled. It is sufficiently inconsistent to lead one to suspect that it arises from a deep confusion or, alternatively, an equally deep cynicism about the principles at stake.

These contradictions are readily apparent to anyone who takes the time to read the full transcript of the president’s interview with ABC’s Robin Roberts, in which he made national news by announcing his new position and discussed the reasons for it at length.

To begin with, it is noteworthy that the reasons the president gives for coming to support same-sex marriage do not in fact fully support such a decision. He indicates that he held back from supporting same-sex marriage because he thought civil unions would sufficiently protect the rights of gay Americans. Later in the interview he justifies his embrace of same-sex marriage on the grounds that it will grant gays legal recognition for their committed relationships, allow them to take on the same rights and responsibilities as heterosexual married couples, and to have hospital visitation rights. All of these things, however, could be achieved without same-sex marriage. What remains, then, apparently, as the real justification for same-sex marriage is that its absence treats same-sex relationships “differently” in some symbolic sense. The president thus seems to embrace the position, now insisted upon by gay-rights activists, that civil unions that give the same legal rights as marriage are inadequate, and that homosexuals are somehow harmed when a state decides to reserve the ancient and honorable title of “marriage” for husbands and wives without pursuing any discrimination at all.

Based on his interview, one may accurately summarize the president’s position as follows: (a) he is personally in favor of same-sex marriage, but (b) it is a state issue, and states have a right to decide it for themselves, but (c) the federal government has no authority to defend the states’ right to define marriage as they see fit. The latter position would seem to be the consequence of his claimed opposition during the interview to the Defense of Marriage Act, which Congress passed and President Clinton signed in order to safeguard the ability of each state to define marriage as it thinks best, regardless of what other states may decide. The glaring tension, of course, is between propositions B and C. The president, to say the least, has not been known for insisting upon limits on the federal legislative power, so it is strange that he would find a limit here. According to the president, the federal government has the power to compel individuals to purchase health insurance, but not to restrain the courts from using one state’s marriage laws to rewrite every other state’s marriage laws. Nevertheless, the inconsistency is evident even without recurring to the president’s positions on other issues besides same-sex marriage. If marriage is primarily a state issue, as he insists, why cannot the federal government legislate to ensure that it remains so?

One discerns even more confusion or equivocation if one looks beyond the president’s position to some of the reasons he gives for it. In the interview, the president takes partial credit for prompting the Justice Department to refuse to defend the Defense of Marriage Act. The Act, he says, is a “violation” of the “equal protection clause.” Now, the Defense of Marriage Act is a federal law. The Equal Protection Clause is found in the Fourteenth Amendment, which limits the powers of the state governments and places no limits at all on the federal power. It is, in other words, impossible on any reading for DOMA to violate the “equal protection clause.” Accordingly, we must give the president the benefit of the doubt and assume that he intends to refer to the supposed “equal protection component” of the Due Process Clause in the Fifth Amendment, which does indeed limit the power of the federal government.

The reality of such a “component” is, of course, highly questionable, but it has been held to exist by the Supreme Court and is enthusiastically embraced by liberals such as the president. Nevertheless, his confusion on such details should embarrass the president and his partisans. A few weeks ago the president was ridiculed by conservative commentators for appearing to confuse the issues in Lochner v. New York, a case involving the power of states to regulate their economies, with the issues in the current health care lawsuit, which concerns the power of the federal government under the Commerce Clause. In truth, that was a rather cringe-inducing performance from a man who received a law degree from one of the most prestigious law schools in the nation and who then lectured in constitutional law at an only slightly less prestigious institution. Still, one might have offered a charitable defense of him on the grounds that his interests in constitutional law clearly lie in the realm of civil rights and civil liberties, rather than the powers and structures of government. The nature of those interests, however, leaves him utterly without excuse for his strange invocation of an “equal protection clause” that limits the federal government.

Be that as it may, the more important issue is the deeper confusion of principle suggested by the president’s remarks. Again, the president continues to affirm the right of states to decide the question of marriage as they wish. It is, he insists repeatedly, a state and not a federal issue. Therefore, his position seems to be that the Equal Protection Clause of the Fourteenth Amendment permits states to define marriage as a union between a man and a woman, but that the equal protection component of the Fifth Amendment does not permit the federal government to do so. Moreover, as the Attorney General’s statement on the issue makes clear, the administration sees section 3 of DOMA, which defines marriage for federal purposes as a union between a man and a woman, as unconstitutionally “discriminatory” against homosexuals. President Obama’s current position, then, is as follows: It is unconstitutional discrimination against homosexuals when the federal government defines marriage as a union between a man and a woman but not when the states do so. It is difficult to see any coherent thread of constitutional reasoning in such a mishmash of opinions.

Finally, those who are praising the president for coming out in support of same-sex marriage should notice that some of the principles he states tend—at least if he means them seriously—to foreclose the only plausible path to national recognition of same-sex marriage: litigation in the federal courts, leading up to a Supreme Court decision announcing a right to same-sex marriage. In his interview, the president criticizes Mitt Romney’s support for a constitutional amendment to define marriage as a union between a man and a woman on the grounds that it makes a national issue out of what should properly be a state issue. Fair enough. But observe that the same could be said about a Supreme Court ruling that finds a constitutional right to same-sex marriage that binds all of the states. Is it really the president’s position that same-sex marriage should be achieved one state at a time, without recourse to litigation based on the federal constitution? Or does he support such efforts, in which case his position is that a constitutional amendment—enacted by the whole people—would improperly nationalize what should be a state issue, but this would not be the case for the “discovery” of a new constitutional right by the unelected justices of the Supreme Court?

Americans obviously disagree on the question of same-sex marriage. Some think it a wrongful redefinition of a fundamental social institution, while others think it a necessary step in the advance of civil rights. What they can clearly agree on, however, is that it is a very important question, one that deserves to be addressed in the most thoughtful and sincere manner by our highest elected official. Both opponents and supporters of same-sex marriage ought, therefore, to agree that the moral, constitutional, and political contortionism described above is disgraceful in a president of the United States.

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