Obama: If I was on the Supreme Court, I’d strike down bans on gay marriage in every state

posted at 7:21 pm on March 1, 2013 by Allahpundit

In case there was any lingering doubt after last night’s post that O wants prohibitions on SSM neutralized coast to coast, not just in California, here’s the man himself at today’s presser to clarify.

Obama responded by saying: “What we’ve said is that same-sex couples are a group, a class that deserves heightened scrutiny. The Supreme Court needs to ask the state why it’s doing it, and if the state doesn’t have a good reason, it should be struck down. That’s the core principle, as applied to this case.

“Now, what the court may decide that if it doesn’t apply in this case, it probably can’t apply in any case. There’s no good reason for it. If I were on the court, that would probably be the view that I would put forward. But I’m not a judge, I’m the president.”

Two things. One: If he believes state-enacted bans on gay marriage violate the Equal Protection Clause, why isn’t he pushing Congress for a federal statute to legalize SSM? He swore an oath to defend the Constitution; his reading of the Constitution holds that laws prohibiting gays from marrying are barred by the Fourteenth Amendment. Congress could, theoretically, pass something under Section 5 of that amendment to nullify those laws. Granted, there’s little chance it would get through the Republican House, but so what? There’s zero chance that Feinstein’s assault-weapons ban will get through the House but good luck getting The One to shut up about that. He’s happy to make the GOP take a tough vote on guns; why wouldn’t he make them take a tough vote on this, especially as prominent Republicans elsewhere emerge as supporters of SSM? The answer, of course, is that O’s still thinking about the bottom line electorally. That’s why he didn’t “evolve” on this issue in 2008 and that’s why he’s not pressing Congress now — namely, because red-state Senate Democrats who are up for reelection next year would have to take a tough vote on this too and they already have their hands full with gun control and immigration. Obama has no choice but to make them vote on those two issues but he does have a choice on gay marriage: He can try to get this done through the courts instead. In other words, even when he’s in gay-rights-warrior mode, The One is still shortchanging gays by not fully ventilating their legal options. And in this case, he’s ignoring his own reading of equal protection to do it.

Two: I didn’t see all of today’s presser, but can it really be true that no reporter followed up on this by pressing him to explain, precisely, how he went from gay-marriage opponent five years ago to federalist gay-marriage supporter last year to advocate of compulsory gay-marriage legalization via the Fourteenth Amendment today? We all know he’s “evolved” but this isn’t the typical “evolution” on SSM where an opponent looks at the policy in action and gradually decides that it’s not that big a deal. O’s not some average voter. He’s a Harvard-trained former law professor who’s moved, in an astoundingly short period of time, between two (or even three) distinct constitutional views of gay marriage. In 2008, when he was (pretending to be) opposed to SSM on the merits, he must have thought that state laws banning SSM were permissible under the Equal Protection Clause. The alternative, that he didn’t think they were permissible even when he opposed SSM, would necessarily mean that he was pushing a policy which he himself thought was unconstitutional. Last year, when he switched to the pro-federalist position, presumably he still thought there was no equal-protection problem with bans on gay-marriage. You can’t be a federalist on a subject if you think the Constitution bars the states from regulating that subject. Flash forward to today and suddenly he’s telling people openly that if he were on the Court, he’d use the Fourteenth Amendment to nuke every last one of those bans. I’d bet there’s not a single law prof in all the land who’s changed their interpretation of the Equal Protection Clause that dramatically in so short a period of time. Obviously, O thought gay-marriage bans were unconstitutional all along and yet he kept that fact to himself, in contravention of his oath, for four full years. And the media, oddly, seems incurious about it even though legalizing gay marriage is one of their ultimate pet issues. Go figure.


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