The Agenda

Will Same-Sex Civil Marriage Be Decided on a State-by-State Basis?

After the president announced his support for same-sex civil marriage, a number of left-of-center critics noted that he continued to embrace the view that issue should be handled on a state-by-state basis. A post at Gawker is representative:

ABC News has only released one brief clip of Obama’s conversation about gay marriage today, but it seems fairly clear from the network’s coverage that his announcement amounts to much less than meets the eye. He now believes that gay couples should be able to marry. He doesn’t believe they have a right to do so. This is like saying that black children and white children ought to attend the same schools, but if the people of Alabama reject that notion—what are you gonna do?

To the author of the post in question, this stance is a moral outrage. (To understand why, I recommend Ross Douthat’s post on the success of the same-sex marriage movement.) It is worth noting, however, that this is not quite President Obama’s view. While many Americans support something like the status quo — state governments should be allowed to issue marriage licenses to state couples, but states that don’t permit same-sex civil marriages shouldn’t be forced to recognize same-sex civil marriage licenses issued in other states — it’s not clear that the status quo can be sustained or that the president actually favors the status quo. Josh Barro writes the following:

The federal government has special tax rules for married people. It gives spouses rights and responsibilities under programs like Social Security. It offers benefits to the spouses of its several million employees. And it confers citizenship on foreigners based on their marriages to U.S. citizens.

President Obama has refused to defend Section 3 of the Defense of Marriage Act, which states that the federal government does not recognize same-sex marriages, against constitutional challenges. So it’s clear that he thinks the federal government should treat married gays as married if they live in jurisdictions that allow gay marriage.

But what about gays who live in states that don’t have gay marriage? Should North Carolina be able to decide that its gay residents don’t get to file joint federal income tax returns, even if they are legally married by another state? Should gay federal workers get spousal benefits only if they work in gay marriage states? Or should the federal government treat gay couples as married no matter where they move?

And there are a number of other related questions that Josh raises, e.g., immigration policy, joint federal-state programs, etc. Chris Geidner has more in an extensive post:

If the administration were still defending DOMA and had taken no position on the level of scrutiny to be applied to sexual orientation classifications, then Obama’s statement might mean that his view is that states have unfettered rights to legislate as they they wish on marriage.

But, that is not the circumstances in which he makes these comments. Instead, Obama’s position now is three-fold: (1) he personally supports same-sex marriage; (2) he believes as a policy matter that state, and not federal, law should define marriages, as it always has been in this country; and (3) he believes that there are federal constitutional limitations on those state decisions. …

Lawyers working on and judges considering these cases already have acknowledged the importance of the DOJ position on DOMA in state-law cases. The day that the DOJ decision was announced in February 2011, lawyers for the plaintiffs challenging Proposition 8 told the judge that the DOJ’s decision represented a “material,” or significant, development.

As the lawyers then wrote, “The conclusion of the United States that heightened scrutiny applies to classifications based on sexual orientation is unquestionably correct. Proposition 8 cannot survive the requirements of heightened scrutiny because its invidious discrimination against gay men and lesbians could not conceivably further an important government interest.”

As that brief — filed by Ted Olson, David Boies and the other lawyers representing those plaintiffs — makes clear, Obama’s legal, policy and personal views are not in any way contradictory and present a clear path forward toward the advancement of marriage equality across the country.

That is, the Obama White House has made it more rather than less likely that federal courts, and not state legislatures or state-level referendums, will settle the same-sex marriage question. This strikes me as unfortunate. It also raises questions for the Obama administration.

Same-sex civil marriage is a fairly low salience issue. The Pew Research Center found that 28% of voter consider it “very important” in a survey released early last month. I doubt that the distance between the view President Obama seems to now hold (same-sex civil marriage should be decided on a state-by-state basis, and I’m for it) and the view he effectively holds (restrictions on same-sex civil marriage should be subjected to heightened scrutiny by the federal courts, which means that it’s not really going to be decided on a state-by-state basis as such) will make much of a difference. But it’s actually not trivial.   

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