News Analysis: Obama’s Marriage Equality Support Is Not the Half-Loaf Some Are Claiming
The President’s statement of personal support for gay marriage weighed against the legal backdrop of the cases in motion.
With some level of heightened scrutiny applied to sexual orientation classifications, as Obama and Holder decided was appropriate based on their analysis of several factors considered when determining the level of scrutiny to apply, the decision that DOMA’s definition of marriage was unconstitutional was relatively straightforward. Department of Justice lawyers have since argued in federal cases from California to Massachusetts that heightened scrutiny should apply to sexual orientation classifications and that, accordingly, DOMA’s federal definition of marriage should be struck down as unconstitutional.
Although being argued in the context of DOMA, however, the level of scrutiny to be applied to sexual orientation classifications would apply across the board — to federal, state and local laws, ordinances and practices.
In fact, on July 1, 2011, in Karen Golinski’s lawsuit seeking equal health insurance benefits for her wife as are offered to an opposite-sex spouse, DOJ filed a significant brief explaining the reasoning behind the Feb. 23, 2011, decision. In it, the administration acknowledged the significant role of both federal and state sexual orientation-based discrimination.
In the Golinski brief — and in several others since — DOJ lawyers spent multiple pages laying out the history of state-based discrimination against gay, lesbian and bisexual people.
It is here where Obama’s enunciated policy position — today and this past June — crosses the path of the legal pursuits of the administration.
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.