The Incoherence of President Obama’s Stance on Gay Marriage

Yesterday the President told ABC News that he believes same-sex couples should be able to get married. So far so good. He further told ABC that he believes this is an issue that should be left to the states which are “arriving at different conclusions at different times.” I have nothing to complain about here, as this is my position as well. I believe in recognition of same-sex marriage, but also believe that this is the sort of question entrusted to state governments under our constitutional system, and that, as with many questions of social policy about which I have strong preferences, different states are and should be free to come to different conclusions on the matter. I also believe that as more states elect to recognize gay marriage (particularly insofar as this is done by legislatures and ballot initiatives, rather than by courts) many of those who are currently uneasy with the idea of gay marriage will learn they have nothing to fear and opposition to gay marriage will slowly melt away.

The problem with the President’s position is that it cannot be reconciled with the Administration’s stance on the constitutionality of the Defense of Marriage Act. According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended. In their view, because DOMA precludes federal recognition of same-sex marriages, it violates the constitutional guarantee of equal protection under the Fifth Amendment. Further, according to Holder’s statement, they concluded that no “reasonable” constitutional argument could be made in DOMA’s defense. Yet if DOMA is unconstitutional under equal protection, which applies to the state and federal governments equally, then how could any state law barring recognition of same-sex marriages survive constitutional scrutiny? In other words, while the President says he believes that states should be allowed to reach “different conclusions at different times” on the question of same-sex marriage, the administration’s legal position is that a state’s refusal to treat opposite-sex and same-sex couples alike is unconstitutional. So while the President may say he’d like to leave this question to the states, that’s an option his administration has already taken off the table.

[NOTE: Edited the post to make clear that equal protectioon is guaranteed as against the federal government through the Fifth Amendment and as against the states through the 14th Amendment, but the standard is the same.]

UPDATE: Here’s the full ABC transcript, in which the President suggests he was also influenced by a concern that DOMA federalizes a traditional state concern. Lyle Denniston comments here, suggesting the President’s legal position does not threaten state laws. Calvin Massey disagrees here. Massey is right.

The official statements from the Justice Department do not raise any federalism concerns and rest the conclusion that DOMA is unconstitutional (and that no reasonable arguments may be made in its defense) on the basis that distinctions based on sexual preference are subject to intermediate scrutiny, that there are no important government interests in maintaining a traditional definition of marriage, and that animus may have contributed to DOMA’s passage. While there are other arguments that could challenge DOMA without threatening state laws (such as those suggested by Will Baude), the Adminsitration’s arguments, were they to prevail against DOMA, would be the death knell for state laws as well. If a federal law supported by Senators Biden, Dodd, Reid and Wellstone — and signed into law by President Clinton — were impermissibly tainted by anti-gay animus, it’s hard to see how state laws barring same-sex marriage would not be as well.

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