The Obama administration’s announcement today that it regards the Defense of Marriage Act as unconstitutional and will not defend it in court is the latest act in a striptease. President Obama favors same-sex marriage — favors its judicial imposition — and is casting off the disguises that have hidden that position one by one.
The portion of the Defense of Marriage Act on which the administration just opined defines marriage as the union of a man and a woman for the purposes of federal law. So if a state court declares that in Massachusetts men can marry each other, its edict does not require the federal government to provide spousal benefits under Social Security to such couples. Obama, while claiming to oppose same-sex marriage, has also favored repeal of this act.
The administration initially pretended to defend the act’s constitutionality in court while actually throwing the case. It abandoned legal defenses that had previously succeeded in court and made other defenses so half-hearted that one judge cited its record in striking down the law.
In today’s announcement, the administration says that the Defense of Marriage Act discriminates on the basis of sexual orientation, that the court should apply “heightened scrutiny” to all laws that so discriminate, and that the law cannot survive this scrutiny. The reasoning is backward. If there are good reasons for public policy to recognize only a subset of opposite-sex couples as married — President Obama’s stated position! — then that policy does not discriminate against people inclined to enter relationships incompatible with that definition. (It does not discriminate against people who are oriented toward triads, either, regardless of what’s on HBO.)
If, on the other hand, we assume that there is no good reason for the law to define marriage as necessarily heterosexual, then of course a law that thus defines it cannot survive scrutiny. About which view of marriage is correct the Constitution is quite obviously silent. It is also silent, except by implication, about whether the courts should make this determination; and the implication is clearly negative.
The administration has not come out and said what logic must commit it to believe: that every state that defines marriage as the union of a man and a woman has also been violating the Constitution from 1868 right until the present day. If they are discriminating against gays and lesbians; if federal judges must bar any laws that discriminate against them unless they see a really strong reason to allow those laws; and if no such reason applies in the case of marriage — why, then every state law and state constitution that recognizes marriage to be what a majority of Americans believe it to be is in defiance of the Fourteenth Amendment’s equal-protection clause.
In short, same-sex marriage should get its very own Roe v. Wade. We would like to think that even some people who favor this result disapprove of the tawdry — undemocratic and dishonest — way Obama has sought to bring it about.
John Boehner, the speaker of the House, should arrange for his legislative body to hire counsel to defend the act in court, now that the administration has first revealed and then proclaimed its lack of interest in doing so. Obama claims to favor the defense of both marriage and the Constitution. He has been equally faithful to both causes.