Commentary

It was legitimate headline news, of course, when President Obama on Wednesday disclosed for the first time that he personally now favors a legal right for same-sex couples to get married.   Because of its symbolic importance, that revelation probably will contribute importantly to the spreading national dialogue on the issue.  But what the President said should not be misunderstood: the full text of his remarks during an ABC-TV interview suggests strongly that he is not committed to making same-sex marriage a right protected by the Constitution.  That view of the fine print takes some explaining.

Taking what he said all together, the most that can be concluded is that he hopes states will create such a right, that he is pleased when a state grants such a right – he praised New York for doing so, and he would vote for it if he were in a state legislature — but he is not yet prepared to join in a challenge to states that refuse to do so.

What the President said is far more nuanced than most of the popular media treatment suggested in its coverage of his interview with ABC’s Robin Roberts.

What the stories emphasized was that the President, following an apparently evolving course of thinking, had now said flatly that he was in favor of same-sex marriage.   Here is how he put that view, in its simplest form, on Wednesday: ”I think same-sex couples should be able to get married.”  And, of course, in order to actually get married, those couples would have to be granted that right, so, in a sense, the President was embracing gay marriage as a legal right.

But there was more, much more, as the full transcript shows clearly.  He said, for example, that this was a matter of law, and he indicated he meant state law.  He said that the issue had to be viewed “from the perspective of the law and perspective of the state.”

He also said that he had not wanted “to nationalize this issue” and he spoke of how the states are “working through this issue…all across the country,” and he said “I think that’s a healthy process and a healthy debate. ”  He then added: “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.”  He noted that it was a question of “civil marriages and civil law” — that could only mean state law.

A part of his opposition to making this a national issue, the President also indicated, was that his Republican opponent this election year– he referred to Mitt Romney without mentioning his name — “wants to re-federalize this issue and institute a constitutional amendment that would prohibit gay marriage.”  Mr. Obama said it was “a mistake to try to make what has traditionally been a state issue into a national issue.”

The President more than once made a point of his Administration’s decision not to continue to defend in court the Defense of Marriage Act, a 1996 federal law that says that, whenever any federal law refers to marriage, it meant only the marriage of a man and a woman.   That law has now written that definition into a whole host of federal laws, numbering more than 1,000.

Last year, his Justice Department notified the federal courts around the country that the government would no longer defend DOMA, as it is popularly called.  The President said Wednesday he agreed with that and, indeed, “I helped to prompt that.”   And he noted that the government is now arguing that DOMA violates the Constitution’s Equal Protection Clause.

But he also said, tellingly, that one of his reasons for opposing DOMA now is that it “tried to federalize what [has] historically been state law.”

Being against DOMA on “equal protection” grounds does not necessarily mean that the President favors applying the “equal protection” clause to state laws against same-sex marriage.

Why not?  It is time, then, to turn to “Proposition 8.”   That is the state of California’s voter-approved ban on same-sex marriage in that state.  It has been ruled unconstitutional under the Equal Protection Clause by a federal judge in San Francisco and a three-judge panel of the Ninth Circuit Court, the federal appeals court for many western states.   The panel ruling is now on hold pending a decision whether that ruling will be reconsidered by the en banc Ninth Circuit Court.

The federal government, though, has taken no part in the challenge to Proposition 8.  There was no bar to its doing so; a wide variety of other groups that had an interest in the marriage issue did join in the case as friends-of-the-court.   The federal government could have done so, too, with an entirely credible argument that it, too, had an interest in the issue, because a ruling that the “equal protection” guarantee forbids discrimination against gays in granting the right to marry would make a strong argument against DOMA, too — even though Proposition 8 is attacked under that guarantee in the Fourteenth Amendment, and DOMA is being challenged under a similar guarantee in the Fifth Amendment.

So, doesn’t it follow, logically, that the President would want to join in the challenge to Proposition 8?  And if that case gets to the Supreme Court, and President Obama is still in office then, why wouldn’t the government join in urging the Justices to take the case and strike down Proposition 8?

Return, then, to the ABC-TV interview Wednesday.   Correspondent Roberts said to the President: “I know you were saying…about it being on the local level and the state level.  But as president of the United States, and this is a game-changer for many people, to hear the president of the United States for the first time say that personally he has no objection to same-sex marriage.  Are there some actions that you can take as president?”

And then (with italics added here to emphasize it) she asked: “Can you ask your Justice Department to join in the litigation in fighting states that are banning same-sex marriage?”

Here is his answer: “Well, I — you know, my Justice Department has already — said that it is not gonna defend — the Defense Against Marriage Act.  That we consider that a violation of equal protection clause.  And I agree with them on that.  You know?  I helped to prompt that — that move on the part of the Justice Department.”

Correspondent Roberts clearly was referring, not to the DOMA litigation, but to the court fight over Proposition 8.  And the President did not answer her question; he chose to treat her question as referring to DOMA, and that is not the same thing.   The “equal protection” principle might not always mean the same thing when applied to laws at different levels of government.

Is this cutting the points too finely?  Because a victory over Proposition 8 would by implication undermine DOMA’s restriction, too, could that be what the President really was thinking about?  Or, given all that he said about this being an issue on the local and state level, and about not wanting it to be a national issue, it is very likely that — to the President — there is a distinct difference between striking down a federal law partly on grounds that it interferes with state powers, and striking down a state law passed by a legislature exercising the very state prerogative that the President has defended.

Posted in Analysis, Cases in the Pipeline, Featured, Same-Sex Marriage

Recommended Citation: Lyle Denniston, Obama on gay marriage: The fine print, SCOTUSblog (May. 10, 2012, 7:15 PM), http://www.scotusblog.com/2012/05/obama-on-gay-marriage-the-fine-print/