"Evolving" at lightning speed: President Obama's new argument for gay marriage

"Evolving" at lightning speed

by digby

There was a mild debate among liberals a few months ago when the president said that whilehe personally believed that gay people should have the right to marry, he also thought it was a "local" issue which people had a right to arbitrate based on their own notions of right and wrong.
What you're seeing is, I think, states working through this issue-- in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that's a healthy process and a healthy debate. 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.
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.

Part of the reason that I thought it was important-- to speak to this issue was the fact that-- you know, I've got an opponent on-- on the other side in the upcoming presidential election, who wants to-- re-federalize the issue and-- institute a constitutional amendment-- that would prohibit gay marriage. And, you know, I think it is a mistake to-- try to make what has traditionally been a state issue into a national issue.

He explicitly endorsed a states' rights position while saying that he thought eventually everyone would agree that gay marriage is a fundamental right. Although I didn't quarrel with the legal strategy of rolling out gay marriage on a state by state basis, I disagreed with the idea that any liberal leader should use the rhetoric of states' rights in the realm of advancing universal human rights.

The good news is that he's changed his mind:

If President Barack Obama were on the Supreme Court, he said Friday, he’d probably support a federal constitutional right to same-sex marriage — though that’s not what his administration asked the current justices to do.

The brief filed Thursday by Solicitor General Donald Verrilli urges the court to strike down California’s voter-approved same-sex marriage ban, known as Proposition 8.

But the Justice Department’s submission does not contain the sweeping argument for a national same sex marriage right that Prop. 8’s opponents made in their legal filings with the court, and that the president now seems to say he supports.

“What we’ve said is that same-sex couples are a group, a class that deserves heightened scrutiny, that the Supreme Court needs to ask the state why it’s doing it, and if the state doesn’t have a good reason, it should be struck down. That’s the core principle, as applied to this case,” Obama said in response to a reporter’s question during an appearance in the White House briefing room. “The Court may decide that if it doesn’t apply in this case, it probably can’t apply in any case. there’s no good reason for it….If I were on the Court, that’d probably be the view that I’d put forward. But I’m not a judge, I’m the president.”

Obama said Friday that while he viewed the state-level debate on the same-sex marriage issue as “profoundly positive,” the Supreme Court fight over Prop. 8 essentially required his administration to confront the issue directly, notwithstanding his comments last May that “this is an issue that is going to be worked out at the local level.”

“Last year, upon a long period of reflection, I concluded that we cannot discriminate against same-sex couples when it comes to marriage, that the basic principle that America is founded on, the idea that we’re all created equal, applies to everybody regardless of sexual orientation, as well as race or gender or religion or ethnicity,” Obama said Friday.

Obama said his view paralleled a broad change in public opinion on the subject.

“I think that the same evolution that I’ve gone through is an evolution that the country as a whole has gone through,” Obama added, “When the Supreme Court essentially called the question by taking this case about California’s law, I didn’t feel like that was something that this administration could avoid. I felt it was important for us to articulate what I believe and what this administration stands for.”
“When the Supreme Court asks do you think that the California law, which doesn’t provide any rationale for discriminating against same-sex couples other than just the notion that, well, they’re same-sex couples — if the Supreme Court asks me or my attorney general or solicitor general, ‘Do we think that meets constitutional muster?’ I felt it was important for us to answer that question honestly,” Obama said. “And the answer is no.”

That's a big step in the right direction. The change in public opinion on this issue is dramatic and irrespective of the legal strategy, I think that it's past time for national leaders to start articulating this as a constitutional right rather than a privilege to be "given" depending on the feelings of other people where they happen to reside. The president has now taken the position that the US constitution offers no rationale for discrimination against same-sex couples --- and that is most definitely not a states' rights position.

I think there should be an explicit federal right to gay marriage and I'm fairly certain we'll get there someday. But I'm also fairly sure it's going to take national leaders who are at least willing to say that human rights should not be subject to the whims of local prejudice and "state sovereignty." As we've seen in just the last few years, it's quite possible for states to roll back long established rights when they're in the grips of conservative political power. We certainly know they're willing to give it the old college try. The president took an important step today by saying clearly that he doesn't actually believe that states have a right to discriminate. Good for him.

Update: BMAZ at Emptywheel has a more thorough legal analysis.