On May 9, President Barack Obama took the momentous step of being the first President of the United States to take the position that same-sex couples should be allowed to marry. According to press reports, he had "evolved" to this point of view by early this year, and had planned to make a public statement shortly before the Democratic National Convention, but the timing was sharply accelerated after Vice President Joseph Biden stated his support for same-sex marriage in an interview broadcast on "Meet the Press" on Sunday, May 6. The next day, Secretary of Education Arne Duncan was asked on a television news program whether he supported same-sex marriage, and he responded affirmatively, taking the same position that Secretary of Housing and Urban Development Shaun Donovan had previously stated. As media pressure mounted for the President to clarify his views, the White House hurriedly arranged for the President to sit for an interview on May 9 with ABC News Correspondent Robin Roberts, during which he stated "I think same-sex couples should be able to get married."
Then he went on to say, according to a transcript released by ABC News, "I have to tell you that part of my hesitation on this has also been I didn't want to nationalize the issue. There's a tendency when I weigh in to think suddenly it becomes political and it becomes polarized. And 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."
So, on the one hand the President stated that he thinks same-sex couples should be allowed to marry, but on the other hand he stated that this a a local issue to be resolved by each state. He's both correct and incorrect.
Numerous federal rights and benefits turn on whether a couple is married, and prior to 1996 any marriage sanctioned by a state would qualify a couple for those federal rights and benefits. Prior to 1996, the question of whether a marriage was recognized for federal purposes — while in some sense a matter of federal law — was determined by reference to state law.
But when Congress passed the Defense of Marriage Act (DOMA) in 1996, it made this a matter of federal law by stating that only the union of one man and one woman could be considered a marriage for federal law purposes. Thus, departing from our historic practice (and, ironically, at a time when no state was providing marriage licenses for same-sex couples), Congress and President Bill Clinton enacted, for the first time in American law, a federal policy under which some marriages recognized under state law would not be recognized under federal law. That makes it a federal issue.
In addition, the Supreme Court made it a federal issue in 1967 in Loving v. Virginia when it ruled that the 14th Amendment applies to state decisions about who could marry whom. In that case, the Court ruled on alternative grounds of due process (fundamental right to marry) and equal protection that a state could not base eligibility to marry on the race of the individuals. Thus, a Virginia law that made it a crime for a "white person" to "intermarry with a colored person" could not be enforced, because the state did not have a right to interfere in the freedom of two individuals to marry, absent some compelling state interest.
Consequently, although it is up to the states in the first instance to determine the qualifications for marriage, that determination must be made consistent with the 14th Amendment guarantees of due process and equal protection, under which the state must have a compelling justification if it is going to interfere with individual choice in the selection of a marital partner.
In opposing constitutional same-sex marriage claims, some courts have tried to narrow Loving v. Virginia to its facts – an interracial different-sex marriage case – and state that the fundamental right identified by the Court was the right of a man and a woman to marry regardless of race. But to do that is to make the same error that the Court made in Bowers v. Hardwick, identifying the right at issue too narrowly, and thus failing to place the case correctly in context. The Supreme Court corrected the Bowers v. Hardwick error in Lawrence v. Texas, overruling Bowers and stating that it was wrong when it was decided, because the right at issue was not, narrowly construed, the "right of homosexuals to engage in sodomy" but rather the right of any person, regardless of sexual orientation, to intimate association with a consenting adult partner.
The Hawaii Supreme Court got this analysis right in Baehr v. Lewin (1993), the decision that provoked Congress into passing DOMA. The Hawaii court said that the state's refusal to issue marriage licenses to same-sex couples was a form of discrimination on the basis of sex, because the state had erected a classification based on sex as a qualification for marriage. Because under Hawaii's constitution sex is a "suspect classification," any state action making eligibility for a right or benefit turn on the sex of a person could only be upheld if the state had a compelling justification for it. In a subsequent trial, the judge found that the state government had failed to prove a compelling justification, and ordered that same-sex couples be allowed to marry. The judge's decision never went into effect because Hawaii amended its constitution to provide that only the legislature can determine whether same-sex couples can marry. (Recently, the Hawaii legislature passed a civil union law.)
In the Proposition 8 case, then called Perry v. Schwarzenegger, the U.S. District Court ruled in 2010 that the 14th Amendment requires California to allow same-sex couples to marry. The court based its ruling on both due process (fundamental right to marry) and equal protection. On appeal, a 9th Circuit panel affirmed on the narrower ground that the record provided no support for finding that California voters had a rational basis for rescinding the right to marry from same-sex couples in the November 5, 2008, election, after the California Supreme Court had ruled in favor of a state constitutional right to same-sex marriage earlier that year. Because the adoption of Proposition 8 was an act of raw politics, not a reasoned judgment based on valid policy concerns, it could not meet even the least demanding level of judicial review. Supporters of Proposition 8 have filed a petition with the 9th Circuit for rehearing by a larger panel. The case may end up going to the Supreme Court, which could address it narrowly along the lines of the panel decision or could deal with the broader ruling of the trial court.
So, as a matter of executive branch authority and legislative authority, marriage has traditionally not been a subject for federal law, as President Obama observed. However, DOMA has made it a subject for federal law, and Loving v. Virginia has made it a subject for federal law. The Obama Administration has already answered the question whether the federal government must recognize same-sex marriages, by abandoning any defense of Section 3 of DOMA and filing briefs in pending cases arguing that Section 3 is unconstitutional under the 5th Amendment (which binds the federal government to comply with due process and equal protection principles). The Obama Administation has yet to take a formal position on the 14th Amendment question: whether state governments are obligated to allow equal marriage rights for same-sex couples. The Administration could do this by filing amicus briefs in pending same-sex marriage lawsuits in which it is not a party. Most of the recent marriage litigation has been in state courts raising only state constitutional claims, as to which DOJ participation would not seem appropriate, but more recently such suits have begun to be filed in federal courts, or to raise federal as well as state constitutional claims, even though filed in state court. It would be a natural move for the Administration to adapt the briefs it has been filing in DOMA litigation and submit them as amicus briefs on behalf of plaintiffs in pending same-sex marriage cases that raise 14th Amendment claims. When the federal constitutionality of a state law is drawn into question, it would be appropriate, albeit not mandatory, for DOJ to express a view.
Underlying the briefs that DOJ has been filing is the legal analysis summarized by Attorney General Eric Holder in his letter to House Speaker John Boehner explaining why DOJ would no longer defend Section 3 of DOMA. DOJ determined that Section 3 discriminates based on sexual orientation, and that sexual orientation discrimination was comparable to other forms of discrimination to which federal courts apply "heightened scrutiny." When heightened scrutiny applies, there is a presumption of unconstitutionality and the government has the burden to show an important government interest that is substantially advanced by the discriminatory policy. DOJ determined that Section 3 could not survive this test, as they could not identify any important federal government interest that was substantially advanced by systematically and across-the-board refusing to recognize lawfully-contracted same-sex marriages for any purpose of federal law.
If that same analysis is applied in litigation challenging the refusal of a state to allow same-sex couples to marry, the same sort of question needs to be asked: What important state interests are substantially advanced by excluding same-sex couples from the right to marry? So far, the state high courts ruling in favor of same-sex marriage have concluded that there is no such state interest at stake (see, e.g., Massachusetts, Iowa, and Connecticut). Those that have ruled against same-sex marriage have rested, generally, on some notion of legislative prerogative (as in the Vermont and New Jersey cases, finding a constitutional right to "equal benefits" but not to marriage) or the bizarre "channeling procreation" rationale (embraced in New York, for example, in a notoriously poorly-reasoned opinion). Merely preserving a traditional definition or expressing moral disapproval of homosexuality would not be sufficient, in light of the Court's reasoning in Lawrence v. Texas, as Justice Antonin Scalia sarcastically observed in his dissenting opinion.
Thus, President Obama has already taken the legal position that the refusal of the federal government to recognize lawfully-contracted same-sex marriages violates the 5th Amendment, as Section 3 of DOMA cannot survive judicial review, and he has taken the political position that same-sex couples should be able to marry. The last question for him to address, to complete the circle as it were, is whether the 14th Amendment requires the states, as a legal matter, to allow same-sex couples to marry. If it does, all of those state constitutional anti-marriage amendments are invalid under the Supremacy Clause, and same-sex marriage would be universally available in the United States.
The President's May 9 statement marked a change of historic importance. For the first time, a sitting U.S. President has stated that same-sex couples should be able to marry. But there is still a distance to traverse that is not solely a matter of state law, but also of federal constitutional principle.