Legal Commentary

Does President Obama Now Support Gay Marriage?

By Dale Carpenter

In his election bid in 2008, President Obama explicitly stated several times that he opposed allowing same-sex couples to marry (?God is in the mix,? he once said), although he favored giving them all of the legal rights and protections of marriage through civil unions. At the same time, he also said he opposed efforts like Prop 8 to set in stone the traditional definition of marriage he said he favored.  Some of us doubted that he really opposed gay marriage and had a hard time trying to reconcile his various statements on the issue. Recently, the president said that he was continuing to ponder his position, a signal that he was moving toward fully and publicly supporting gay marriage.

We now seem to have an implicit answer from the president about where his reflections have led him. In a letter to Congress, AG Eric Holder elaborates on why the administration believes DOMA Section 3 is unconstitutional. Previously, in defenses of DOMA, which defines marriage as the union of one man and one woman for federal purposes regardless of state law, the administration explained that there was a rational basis for the law. It preserved the status quo while states continued to experiment with various ways to recognize gay families. This was a weak defense, rejecting the most prominent justifications for the traditional man-woman definition of marriage, including promoting responsible procreation by heterosexual couples and encouraging biological parents to raise their children within marriage.

It was hard, even yesterday, to concoct a constitutional defense of traditional marriage in a world where these standard justifications (about procreation and child-rearing) had been rejected as unrelated to a ban on same-sex marriage. At most, I think, one might have said yesterday that the DOMA challenges involved federal refusal to recognize actual same-sex marriages while granting full recognition to opposite-sex marriages. But, one might have argued, a federal court decision holding that DOMA was unconstitutional did not necessarily mean states would be constitutionally required to recognize SSMs. That distinction might have been justified yesterday by saying, for example, that a state?s interests in responsible procreation and traditional child-rearing were stronger (more rational, more legitimate) than the federal government?s identical justifications for DOMA Section 3.  Once a state had given up on opposite-sex-only marriage, the justifications based on procreation and child-rearing to deny same-sex couples recognition at the federal level had been drained of any real significance.

The DOJ?s new position withers even that thin reed. The AG?s letter makes several key points clear.  First, limiting marriage to one man and one woman discriminates on the basis of sexual orientation, a conclusion many courts have resisted by offering that gay people are still free to marry opposite-sex partners. Second, the DOJ now believes that all discrimination on the basis of sexual orientation should be subject to some heightened scrutiny (specifically, intermediate scrutiny), not simply rational basis review. That?s because, according to the DOJ, there has been a history of discrimination against gays, because sexual orientation is immutable (citing Judge Posner?s Sex and Reason) and should not have to be hidden (citing the recent repeal of DADT), because gays lack political power (witnessed by the laws attacked in Romer v. Evans and Lawrence v. Texas), and because we have now recognized through changes like the repeal of DADT, changes in public attitudes, and judicial decisions like Romer and Lawrence that homosexuality does not affect one?s ability to contribute to society.  Finally, argues the DOJ, excluding gay couples from marriage cannot surive intermediate scrutiny.

The Obama administration has now formally put the weight and authority of the Executive Branch behind the proposition that government discrimination against gays and lesbians is unconstitutional under the equal protection principles of the Fifth and Fourteenth Amendments. Since marriage between two people of the same sex, whether unrecognized by the federal government under DOMA or barred by the states under their own marriage laws, discriminates against gays and lesbians and cannot survive heightened scrutiny, it follows that the laws of 45 states barring gay marriage are unconstitutional. While the DOJ won?t formally be attacking state marriage laws in federal courts, its views do carry some persuasive heft.

It?s possible, I suppose, for the president to continue to thread the ever-narrowing thin needle between declaring that something unconstitutional might also be good policy. He may not yet be ready to say on national television that he favors gay marriage. But in light of the DOJ?s fully elaborated constitutional analysis, he has said with deeds what he has not quite yet said with words.

Full post as published by The Volokh Conspiracy on February 23, 2011 (boomark / email).