Remember, the fine print in his big “evolution” announcement a few weeks ago was that he was merely stating his personal opinion on SSM, not ushering in a new federal policy. Leave it to the states, he said, to handle this issue. But that too was a charade and I noted it at the time. If you follow his and Holder’s logic in opposing DOMA, which has been public knowledge for 15 months, the Equal Protection Clause does/should require legalized gay marriage in all 50 states no matter how many ballot initiatives banning the practice pass. He’s using “states’ rights” rhetoric to hedge on his, ahem, change of heart simply because he fears the political consequences of calling on federal courts to impose gay marriage coast to coast via the Constitution.
This charade too will drop. But probably not for awhile:
Despite his comments that he thinks the matter should be left to the states, many gay rights advocates strongly believe that it must be dealt with nationally — and that Obama is quietly on their side. Conservative critics of the president suspect the same, citing this as one way the president might tack left if reelected.
And some Obama supporters who are uncomfortable with same-sex marriage fear that in a second term, he would come under enormous pressure to back efforts to impose the legalization of such unions at the federal level…
In particular, they are worried that the president’s preference for state-by-state recognition will give way to the view that same-sex marriage is a guaranteed right under the Constitution. That issue is at the heart of a case that could come before the Supreme Court in its term beginning in October: It involves Proposition 8, a voter-approved California constitutional amendment that bans gay marriage.
Obama opposed Proposition 8. But if the court accepts the case, it could ask the administration for its view on whether marriage is a fundamental right that cannot be withheld from gay couples. Such a finding could sweep away state decisions on same-sex marriage, as well as the bans in 30 state constitutions.
The administration could, and probably will, simply stick with their DOMA argument, which is that gays are a historically persecuted class and therefore laws that discriminate against them should receive “heightened scrutiny” from federal courts. (I wrote about this last February when their new position on DOMA was announced.) When a court applies “heightened scrutiny,” it will find the law in question unconstitutional unless the state can offer some very compelling justification for upholding it. In theory that’s possible but in practice laws subject to that degree of scrutiny are always struck down. In fact, if I’m not mistaken, that’s the core argument being made by Ted Olson and David Boies in their legal quest to get the Supremes to strike down Proposition 8. It’s an equal protection matter, therefore minority rights trump majority will — coast to coast.
Point being, for all his states’ rights blather, Obama and his DOJ are already legally on the side of people who want gay marriage legalized nationally by judicial order. As I’ve said before, I think that’s a grave strategic mistake at a moment when national polls already show majority support for legalizing SSM. If the courts intervene, gay marriage opponents will feel cheated and their opposition to the practice will concretize. If the courts stay out of it, more American teens will come onto the rolls over time and the pro-SSM side will likely start winning ballot initiatives. In fact, thanks to O, they may win one easily sooner than expected:
A new Public Policy Polling survey in Maryland finds a significant increase in support for same-sex marriage among African American voters following President Obama’s historic announcement two weeks ago. The referendum to keep the state’s new law legalizing same-sex marriage now appears likely to pass by a healthy margin…
The movement over the last two months can be explained almost entirely by a major shift in opinion about same-sex marriage among black voters. Previously 56% said they would vote against the new law with only 39% planning to uphold it. Those numbers have now almost completely flipped, with 55% of African Americans planning to vote for the law and only 36% now opposed.
Not the first poll to show movement on this issue among black voters after O’s announcement, but the acid test will be the referendum itself. I wonder what impact it’ll have on Obama if it passes. Will he double down on the federalist position, on the assumption that more (blue) states will legalize SSM on their own over the next few years or will he read it as enough of a turning of the tide in opinion that he might feel safer calling for a national solution in his second term?
Exit question one: How happy do you think purple-state Democrats would be to have O publicly endorse coast-to-coast gay marriage by judicial order, even in his second term? Exit question two: If the Court asks the DOJ for its opinion on Prop 8 in October, will Obama push the states’ rights line even though it contradicts his DOMA position or will he be consistent? Consistency on this issue could be dangerous with the election so close at hand.