Jay Carney: Obama’s “grappling” with his position on gay marriage or something
posted at 8:20 pm on February 23, 2011 by Allahpundit
Via Greg Hengler, if the Ahmadinejad video is the most surreal clip we’ve ever posted, this one might be the most cynical. And yet, it’s an opportunity to make an important point: The true significance of this morning’s news isn’t merely that the DOJ will no longer defend DOMA, it’s that Holder’s letter laying out his reasoning is essentially a legal mini-brief arguing against traditional marriage laws at the state level too. You can read all six pages here, but Tapper quotes the money bit:
President Obama believes that section – Section 3 — “is unconstitutional” given the Due Process Clause of the Fifth Amendment (including its equal protection component), Holder wrote, and the president has instructed the Department of Justice to no longer defend the law in those two lawsuits…
[N]ow, “under heightened scrutiny” since the 2nd circuit court asked for the administration to defend its position given lack of precedent, Holder wrote, the government’s ability to defend the law can no longer be made by “advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.”
That legislative record, Holder wrote, “contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”
Strictly speaking, Holder’s making the case for why a federal marriage statute, i.e. DOMA, is unconstitutional, but any court that agrees with him that laws discriminating against gays merit “heightened scrutiny” under the Equal Protection Clause will be forced to invalidate state marriage laws too. What this is, essentially, is political cover for Anthony Kennedy to eventually decide that enough of a “consensus” has been reached on gay rights that it’s finally safe to declare discriminatory marriage laws illegal everywhere in the United States. For an elaboration on that point, see Dale Carpenter’s post at the Volokh Conspiracy entitled, “Does President Obama Now Support Gay Marriage?” From a legal standpoint, the answer is unquestionably yes.
Two clips for you here, one of Carney and the other of Mike Huckabee warning that the DOMA decision could be Obama’s downfall. In fact, I wonder if this will stir enough displeasure among social cons (and independents?) that it’ll entice Huck into the race. He insists he hasn’t ruled out running yet, despite many indications to the contrary, but if he’s truly on the fence, an old-fashioned hot-button social issues subplot to next year’s campaign might convince him that, yeah, he really can win this thing.