Wednesday, May 9, 2012

Obama's "Support" of Marriage Equality: Read the Fine Print

The headlines, including on this blog, are buzzing about President Obama's sudden support for same-sex marriage. Obama stated this position during an interview with Robin Roberts of ABC's Good Morning America. Excerpts of the interview will air tonight on World News and Nightline. The full interview will air tomorrow on Good Morning America.

Although Obama stated that he personally believes that gay men and lesbians should have the right to marry under the law, he also qualified this position in a way that is very important from a legal standpoint. Obama believes that states should have the power to decide this issue on their own.

Why is this qualification important from a legal standpoint? This qualification means that Obama's support of same-sex marriage is strictly personal - not legal (even though he speaks about it as a "right"). If states retain the authority to define marriage in opposite-sex terms, then gays and lesbians cannot claim a constitutional right to marry each other.

To understand this argument, consider the quintessential liberal setting in which this type of reasoning frequently appears: abortion. Many opponents of abortion argue that states should have the sole voice on this issue and that it is not a matter for the federal government or federal courts. Ron Paul and many other conservatives have embraced this very position.  The Supreme Court, however, held in Roe v. Wade that the Fourteenth Amendment gives women the right to terminate a pregnancy. Although the Court has severely weakened Roe since it was decided, this right is still protected by the Constitution.

Because abortion is a constitutional right, the federal courts and Congress have the power to protect it.  Article III of the Constitution gives the federal courts the authority to decide "cases or controversies" that involve questions of federal law -- including constitutional law.  The Fourteenth Amendment gives Congress the express power to enforce the rights it contains.

Accordingly, when critics argue that abortion should remain solely within the purview of state law, they are effectively arguing that it should not qualify as a fundamental liberty interest protected by the Constitution. States do not have complete authority over constitutional rights. This fact is well established and supported by constitutional text.

Applying this same reasoning to marriage equality, the argument that states should have autonomy over the subject of marriage means that states could prohibit or permit same-sex marriage.  The Constitution, which is federal law, would have no bearing on this decision.

Accordingly, Obama's new position on marriage equality implies that the Constitution does not or should not guarantee marital equality for gay men and lesbians. Instead, it is up to states to recognize this interest.

Unfortunately for people wishing to enter into a same-sex marriage, only six states and the District of Columbia currently allow them to do so. While advocates of same-sex marriage have loudly applauded Obama's new position, I implore them to read the fine print!


Nell said...

Isn't Loving v. Virginia apt here? Wasn't it decided on Fourteenth Amendment due process and equal protection grounds? Didn't the unanimous decision state that "marriage is a basic right of man"?

How can Obama, a man who claims to be well-versed in the constitution, throw in his lot with the "states' rights" crowd and claim that there is no constitutional basis for the right to marry the partner of one's choice?

Haribaldi Jones said...

Obama opined (personally) that marriages should include men-to-men and women-to-women.

As he evolves further, he may think male cousins should marry, or an entire Swedish women's ski team. A constitutional right to marry the partner(s) of choice. So what?

We all already knew Obama was in favor of whatever is the orthodox left wing position on this--or any--social issue.

He opened the military to gays and refused to enforce the bi-partisan DOMA; so we knew that when the gay lobby (which wants public school textbooks and curriculum, TV ads, bias law, and tax policy amended to force a more gay-friendly view in society) asked him to get off the fence, he'd say yes. He nees their money. Left-of-center gay activist are a key constituency (like Democratic Jews, they punch above their weight).

He had been mum on the marriage issue, because he wants to win Florida, Missouri, Pennsylvania, Ohio, and Iowa. Gay Democrat leaders had privately assured him he was fine.

Biden forced him off his rhetorical fence.

But still, so what? Is this really momentous? All he said was he's personally in favor of gay marriage; and that states should define "marriage" as they see fit. Sounds like Ron Paul or Dick Cheney to me.

Most states *40 or more?) will define marriage as one-man-to-one-woman, if put to a vote. The Supreme Court will sort out full-faith-and-credit issues, and thorny interstate custody and property disputes.

If it took Obama this long to reach and state this "evolutionary" opinion, he should certainly also state emphatically that people who differ are not (for that reason alone) "bigots." Canards of "he's not a patriot" or "he wouldn't have killed Bin Laden" or "wanting marriage to remain tinged by sacrament is bigotry" are not helping us debate freely.

By the way, what a gift to Mitt! It's the only issue the good Mormon has never "evolved" himself! He is clear on this: no, never, not.

(It's odd for Obama to call it an evolution. He was "pro-gay marraige" in 1996. Did he devolve, then evolve? On what basis?)

Conservatives energized, Mitt breathes easier.

Personally, I've always favored vigorous civil unions (for all non-religious) with all the benefits of marriage but no pretense to the term "marriage" (more of a sacrament or covenant) so the religiously faithful can feel welcome and free in our land.

Secular laws, but free religion!


Darren Lenard Hutchinson said...

Nell - Loving is a great analogy - but the case does not compel recognition of same-sex marriage. Basically, it all comes down to how one defines a fundamental right. Conservatives define liberty in narrow terms. For example, Scalia would argue that even though marriage is a fundamental right, this right has always been defined in opposite-sex terms. A liberal, on the other hand, would argue that no good reason exists to limit that tradition to heterosexuals. In other words, the same factors that warrant recognizing marriage as a fundamental right exist regardless of sex.

Darren Lenard Hutchinson said...

Haribaldi Jones - although I agree with you on some things (e.g., Obama, Cheney and Paul have similar positions on marriage), I strongly disagree on others.

First, your opening point -- recognizing same-sex marriage could lead to marriage for cousins and an entire Swedish women's ski team -- is pretty ridiculous. First, cousins can already marry - even in states that prohibit same-sex marriage (e.g., North Carolina). Furthermore, why doesn't the existence of heterosexual marriage present similar risks? If a man and a woman can marry, why not a man and two women? Why not an entire rugby team? Why not a man and a woman who are cousins?

Your argument assumes that heterosexual marriage is an uncomplicated baseline that does not place society on a "slippery slope." But you have not stated why this could possibly be the case.

Second, marriage rights are not religious. Civil marriage is a legal relationship created by state governments. People can get "married" in a religious institution, but not have a legally recognized marriage. Gays and lesbians have done this for years. Recognizing same-sex marriages would not affect religions AT ALL. This is a common misunderstanding.

Finally, the Equal Protection Clause is not meant to make religious people "feel welcome." Instead, it prohibits unjustifiable discrimination by the states. Many religious organizations want the states to mandate discrimination against gays and lesbians in for their members to feel comfortable - but the Constitution did not create a theocracy. Often, religious people experience great pleasure and comfort when governments violate the rights of others.

Nell said...

Darren, thanks for your reply. In my typical fashion, I dropped in and made a quick on-the-fly comment, but in no way did I mean to imply that Loving alone was sufficient to establish a federal right to same-sex marriage. I was speaking only to Obama's remarks that marriage is a matter for state jurisdiction, although to be fair, he may have been referring to the fact that there is no Congressional remedy at the federal level to bring about same-sex marriage. I would agree that Congress can't get ahead of the Supreme Court on this issue.

As I recall, in his closing arguments in Perry v. Schwarzenegger (the Prop. 8 case), Ted Olson made several references to Loving in making the case that marriage is a fundamental human right.

Darren Lenard Hutchinson said...

Nell: Yes, Loving has been a central argument in litigation, legal scholarship, and political debates regarding same-sex marriage. Obama absolutely qualified his comments by tossing in the state-by-state comments.

And you're right - these comments can be read to mean that Congress cannot do anything on this issue. But I think they were intended to mean "I" will not do anything on this issue. This is the last thing I will do officially on the subject.

SCOTUS blog had a story similar to mine that analyzes the entire interview. Robin Roberts asked him whether DOJ would file a brief in litigation challenging state prohibitions of same-sex marriage. He quickly shifted the subject to his refusal to defend DOMA -- which of course is completely different from challenging state marital bans on Equal Protection grounds.

Haribaldi Jones said...

Prof. Hutchinson:

Thank you for your thoughtful reply (and worthy blog). Marriage is currently thought of merely as a "right" created by states; but it was not always thus. Before nation-states, priests and clerics granted this sacrament. After nation-states, marriage may remain. Our imagination and context is so limited; we think we wake up devoid of history or context. But I get your point, and it is undeniably accurate if all we care about is law.

Sadly, you've imagined a point I didn't make. I do not say that gay (or bisexual marriage) inexorably evolves into triangular arrangements. I agree that heterosexual marriage can easily transmogrify into group marriage.

But it's my job to be clear. All I was saying is our president (or anyone) could have any number of novel or unpopular opinions. And call it evolution; implying that opponents are Cro-Magnon in attitude.

I find that super-accelerated evolution aesthetically unpleasant.

Particularly when there are options. Like civil union; our French friends use this distinction well.

And people of faith do matter; overwhelmingly the majority in the land, they too want their ancient voices to be heard, in public school, and in the public square. That's probably why Obama said his new (but suddenly obviously non-bigoted) political conceit is born of Jesus.

rpannier said...

Prof Hutchinson

I do like this article and your point is valid. Politicians in DC often make many 'brave' or 'bold' assertions, but they make sure to include the caveat, "state's decision' (or some other phrase meaning the same thing.

In the 40's and 50's I could easily have said I believe in equal rights for all people -- but it should be the states that decide it.

The ending result is I look like a very modern thinking person, when in reality I'm just covering my bases for when the inevitable backlash comes.

Had we left many things up to the states, we'd have never had laws that protected many minority groups in this country -- including some religious groups. Catholics, LDS, and many minor Protestant denominations would have been excluded by 'the will of the people.'
Some of which you are hearing today, "Mohammad didn't like the religions around him, so he wrote his own book."
This is meant to feed the notion that Islam isn't really a religion.
Some people say it covertly, but and more and more I'm hearing people say it isn't a real religion openly.

While I'm glad the President has at least paid more attention and given more personal support to the concept, after all people are more engaged on the subject now, I think you're correct, it doesn't really put much teeth into changing the situation immediately.

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