Bench Memos

Office Hours with a Quondam Lecturer in Constitutional Law

In addition to the wealth of commentary on the president’s announcement yesterday that he supports same-sex marriage (including the items Ed linked earlier today), I think some questions for the president are in order.  After all, he used to teach constitutional law (or some parts of it) at the University of Chicago.  Here goes:

You said yesterday, Mr. President, that you “helped to prompt” the Justice Department to take its current position (adopted in late February 2011) on the constitutionality of the Defense of Marriage Act (which you mistakenly, but somehow tellingly, called the “Defense Against Marriage Act”).  In the Attorney General’s statement on this matter, he gives you more credit than you humbly took yesterday.  He tells us that “the President has concluded” that “classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.” 

Can you tell us now whether this is still your view?  If Section 3 of DOMA is unconstitutional, what about Section 2, on the interstate validity of same-sex marriages contracted in some states, which other states do not wish to recognize?  Is that unconstitutional as well, on similar grounds?  You seemed to say so to Robin Roberts yesterday when she asked whether your Justice Department would “join in the litigation in fighting states that are banning same-sex marriage.”  Your reply was that the act–you didn’t say just one part–is now considered by the executive branch to be “a violation of [the] equal protection clause.”

If that is so as respects Section 2 of DOMA, what becomes of your stated position yesterday in the same interview that “this is an issue that is gonna be worked out at the local level,” and that it seemed all right with you “that different states are coming to different conclusions”?

Can you explain what is meant by “heightened scrutiny” under the equal protection clause, and why a failure to grant marriage rights to same-sex couples triggers it as to a certain “classification” of persons?  And what “classification” of identifiable persons would that be?

Can you explain why you believe, as you said yesterday, that last summer’s New York legislation of same-sex marriage was “respectful of religious liberty,” when there were and remain strenuous objections to the contrary from prominent religious leaders in the state?  What should be the parameters of “respect” for religious liberty under the new dispensation of same-sex marriage that you envision?

Judge Vaughn Walker, in the Prop 8 case in California, held that a state constitutional amendment that recognizes marriage only as between one man and one woman does not even pass the “rational basis” test under the due process clause.  Do you agree with him?  Can you explain why or why not?  Is there a firmer ground for such a conclusion under the due process clause, or under equal protection?  Should Judge Walker have applied “heightened scrutiny,” as you evidently did to DOMA six months later?

Judge Walker also held, as a “finding of fact,” that “religious beliefs that gay and lesbian relationships are sinful . . . harm gays and lesbians,” and that “moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.”  He concluded that the irreducibly religious basis of opposition to same-sex marriage rendered it wholly without any “rational basis.”  Do you agree with these findings and conclusions?  Would you like to separate yourself from Judge Walker, in light of your statement yesterday that your fellow citizens who, for religious or other moral reasons, disagree with you, are “not coming at it from mean-spirited perspective”?

Judge Stephen Reinhardt earlier this year, writing for a Ninth Circuit panel that upheld Judge Walker’s ruling, shifted the ground of decision somewhat, arguing that inasmuch as the state of California had been granting marriage licenses to same-sex couples for 143 days in 2008 (thanks to the diktat of the state supreme court), therefore Prop 8 amounted to “new law” that arbitrarily deprived these persons of an established right, contrary to the equal protection clause.  Did he get this right?  Was Judge Reinhardt correct to resort to the equal protection principle here, instead of due process?  Do you agree that the state supreme court made no “new law” in its ruling for same-sex marriage in 2008, but that the people of California did make “new law” in Prop 8 later that year?

If Judge Reinhardt is correct, does it follow that the Constitution is violated only in the case of those states that have created same-sex marriage but subsequently eliminated it as a form of legal union?  Or is the Ninth Circuit ruling somehow generalizable to other states that have restricted marriage to one man and one woman without any intervening period when same-sex marriage existed?  If so, how?

Can there be a federal constitutional right to same-sex marriage in some states but not others?

I’m sure some further questions will occur to me, Mr. President.  If so, I’ll be back.


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