President Obama this week said in an interview that he can’t imagine an instance where a gay marriage ban could be constitutional. Does this mark a final step in his evolution on gay marriage and is it designed to impact the upcoming Supreme Court cases?
In an interview with George Stephanopoulos of ABC news that was released on Wednesday, Obama said:
“In terms of practical politics, what I’ve seen is a healthy debate taking place state by state, and not every state has the exact same attitudes and cultural mores. And I — you know, my thinking was that this is traditionally a state issue and — that it will work itself out. On the other hand — what I also believe is that the core principle that people don’t get discriminated against — that’s one of our core values. And it’s in our Constitution.”
Stephanopoulos went on to ask whether Obama could imagine a circumstance where a gay marriage ban could be constitutional.
“Well, I can’t, personally. I cannot,” Obama responded. “That’s part of the reason I said, ultimately, I think that same-sex couples should be able to marry. That’s my personal position. And, frankly, that’s the position that’s reflected — in the briefs that we filed — in the Supreme Court.”
President Obama’s administration filed briefs in the two major marriage equality-related cases the Supreme Court will start considering this month, Windsor v United States, which tackles the federal Defense of Marriage Act, and Hollingsworth v Perry, the California Proposition 8 case.
It’s the Proposition 8 case that deals directly with whether state recognition of marriage equality can be defined away by a majority vote and, potentially, whether any state can justify a marriage equality ban when squared against the Constitution.
Obama famously announced in 2012 that he had “evolved” on the marriage equality issue and now supported same-sex couples marrying, making him the first sitting President of the United States to ever do so. His support was, at that time, qualified: he believed that while the federal Defense of Marriage Act’s ban on gay marriage recognition could not be justified, state marriage equality laws should be decided on a state level.
Obama’s brief in the Proposition 8 case does not explicitly make clear that the administration deviates from this line and seems to play to a conservative court’s sensibilities by showing how it need only decide on the very particular circumstances of how Proposition 8 was enacted. It’s worth reminding ourselves on how that came to be if we’re to consider the question of whether Obama’s words here have any influence.
Briefly, in 2008 the state supreme court ruled that a statutory ban on same-sex marriage was unconstitutional and so legalized marriage equality. Religious conservatives, trading on anti-gay animus, then launched a campaign to create a constitutional ban and in November of 2008 — on the very same night as Obama’s first presidential victory — they were successful and once again made same-sex marriage illegal in California. In that time, more than 18,000 same-sex couples had married and remain married today thanks to a subsequent intervention by the state supreme court.
With a federal District Court and the Ninth Circuit Court of Appeals both having ruled that Proposition 8 is unconstitutional, it remains for the Supreme Court to decide whether the ban can pass constitutional muster. But a question has persisted in this case: whether the Supreme Court of the United States will confine itself to narrowly considering Proposition 8 or whether, at the same time, it will be forced to consider the legality of every other state’s gay marriage ban.
With this in mind, Obama’s evolution on the issue, that no gay marriage ban can be squared against the Constitution, seems to be a statement of intent: that from this point on the administration may take a more aggressive line in arguing that if a fundamental right to marriage does exist, as the Supreme Court has ruled several times now, then so too must a right to enter into a same-sex marriage.
However, because the Department of Justice’s brief in Hollingsworth v Perry confines itself to the question of whether Proposition 8 alone is legal, President Obama’s statement may not feature if the Supreme Court is content to confine itself to the narrower argument. On the other hand, should the justices decide striking down Proposition 8 would hold wider implications, Obama’s words may be important if the administration is asked to clarify its position on the constitutionality of all same-sex marriage bans.
The Supreme Court will hear opening arguments in Windsor and Hollingsworth in late March, with a decision due in June.
Image credit: Intel Photos.