Metro Weekly

Obama: Constitutional right to same-sex marriage in all 50 states

Photo: Barack Obama. Credit: Christopher Dilts/Obama for America.
Photo: Barack Obama. Credit: Christopher Dilts/Obama for America.

President Barack Obama stated that he believes the U.S. Constitution guarantees same-sex couples the right to marry in all 50 states, endorsing a position long advanced by marriage-equality advocates.

“Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” Obama said in an interview with The New Yorker’s Jeffrey Toobin published Monday. “But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.”

Obama’s remarks were made during an Oct. 7 interview with Toobin — one day after the U.S. Supreme Court declined to hear arguments in cases challenging same-sex marriage bans in five states — Utah, Oklahoma, Virginia, Indiana and Wisconsin — thus allowing lower court decisions legalizing marriage equality in those states to stand. Because the Supreme Court left intact rulings by the 4th Circuit, 7th Circuit and 10th Circuit Courts of Appeals striking down same-sex marriage bans in those five states, those appeals courts’ decisions applied to six other states in those three circuits: West Virginia, North Carolina, South Carolina, Kansas, Colorado and Wyoming.

When asked to name the best Supreme Court decision issued during his presidency, Obama pointed to the Oct. 6 decision not to hear those cases.

“In some ways, the decision that was just handed down to not do anything about what states are doing on same-sex marriage may end up being as consequential—from my perspective, a positive sense—as anything that’s been done,” Obama said. “Because I think it really signals that although the Court was not quite ready—it didn’t have sufficient votes to follow Loving v. Virginia” — which struck down state bans on interracial marriage in 1967 — “and go ahead and indicate an equal-protection right across the board—it was a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up.”

Obama’s belief in a federal constitutional right to same-sex marriage nationwide is the latest evolution on the issue by the president who endorsed marriage equality in May 2012. When Obama publicly announced his support same-sex marriage at that time, he told ABC’s Robin Roberts same-sex marriage was “an issue that is going to be worked out at the local level, because historically this has not been a federal issue, what’s recognized as a marriage.”

In March 2013, one day after his administration filed a brief urging the Supreme Court to strike down Proposition 8, California’s ban on same-sex marriage, Obama noted that while the brief from Solicitor General Donald Verrilli did not call for same-sex marriage bans in all states to be struck down as a violation of the 14th Amendment’s guarantee of equal protection, that does not necessarily mean he personally believes the Supreme Court should not rule broadly against all same-sex marriage bans.

“What we’ve done is put forward a basic principle, which applies to all equal protection cases whenever a particular group is being discriminated against, the court asks the question, what’s the rationale for this and it better be a good reason. And if you don’t have a good reason we’re going to strike it down,” Obama told reporters at the time. 

“Now, 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,” he said of that basic principle. “If I were on the court, that’d probably be the view I’d put forward. But I’m not a judge, I’m the president.”

Days later, in an interview with George Stephanopoulos of ABC News, Obama said of state marriage bans, “What I believe is that if the states don’t have a good justification for it, then it probably doesn’t stand up to constitutional muster.” Obama added that he could not imagine a constitutional justification for the high court upholding state bans on same-sex marriage.

Obama’s position on a constitutional right to same-sex marriage has not yet been formally advanced in a court brief by his administration, nor by his solicitor general. Outgoing Attorney General Eric Holder has repeatedly said the Justice Department will file a brief in support of same-sex couples’ right to marry should the U.S. Supreme Court again consider the issue.

“The President’s position on marriage equality is supported by dozens of federal court rulings over the last year, which have ruled discriminatory state bans on marriage unconstitutional,” said Human Rights Campaign President Chad Griffin in a statement. “America’s core values of liberty and equality under the law were enshrined in our Constitution by our founders to protect those who face inequality inflicted by the majority. It’s only a matter of time before committed and loving gay and lesbian couples can legally marry in every corner of this great nation.”

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