Jonathan Adler, a law professor who supports same sex marriage, convincingly demonstrates that President Obama’s recently evolved support for it is fundamentally incoherent.
The President told ABC News that the issue should be left to the states, which are “arriving at different conclusions at different times.” The problem with the President’s position, Adler points out,
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.
If DOMA — “a federal law,” Adler notes, “supported by Senators Biden, Dodd, Reid and Wellstone — and signed into law by President Clinton” — is indefensible on equal protection grounds, then the laws of North Carolina and the thirty or so states that have similar laws are all unconstitutional on the same grounds.
It is easy to conclude — as a number of those who have commented on Adler’s post do — that Obama is simply either prevaricating or lying, trying to hold on to the support of those who favor same sex marriage by stating his personal opinion while attempting to reassure voters in states that oppose it that he has no desire to overturn their laws that limit marriage to one man and one woman.
It is also easy to highlight the lack of clarity about the principle informing the President’s new (or at least current) position. If the principle of equal protection, for example, elevates an individual’s sexual preference for members of his or her own sex to a fundamental right that precludes a majority’s ability to codify a traditional view of marriage limited to one man and one woman, why should the equally strong preferences of those who want to marry more than one other person deserve the same equal protection? Why, that is, does that newly minted right also preclude limitation of marriage to two (unrelated?) people?
The fact that both those observations are easy doesn’t mean they’re wrong, but I’d like to emphasize something else that I found striking about the President’s recent statement. Consider:
“I asked myself right after that [June 2011] New York vote took place, if I had been a state senator, which I was for a time, how would I have voted?” Obama told Roberts. “And I had to admit to myself, ‘You know what? I think that I would have voted yes.’
“It would have been hard for me, knowing all the friends and family that are gays or lesbians, that for me to say to them, you know, ‘I voted to oppose you having the same kind of rights and responsibilities that I have,’” he said….
“At a certain point, I’ve just concluded that, for me personally, it is important for me to go ahead and affirm that I think same-sex couples should be able to get married,” he said.
I, of course, added emphasis above, but it seems to me that, far from distorting Obama’s intent, the added emphasis actually reveals the only authority he recognizes: his own opinion. The scientific question, I suppose, is whether “evolution” has ended with the above Obama-centered statement, or will it continue into as yet uncharted territories such as polygamy, polyamory, etc.
The real question that this “for me personally” position virtually shouts, however, is whether Obama’s personal support for same sex marriage is simply another version of the “personal” opposition to abortion of Catholic Democrats who in fact never actually opposed any pro-abortion policies or court opinions.
Or perhaps what Obama is really doing here is asking voters to give him “space” now, as he famously asked Medvedev regarding missile defense when he thought no one else was listening, because “[a]fter my election … I have more flexibility.”
Perhaps the best test of the policy implications, if any, of the President’s personal support for same sex marriage is whether (now? “after my election”? never?) he will sign the executive order prohibiting discrimination on the basis of sexual orientation or gender identity that has been awaiting his signature, which I discussed here and which gay and left groups have begun to demand more loudly.