I'm Going to be Such a Bummer Now

Barack Obama thinks the Equal Protection Clause of the 14th Amendment should not protect same-sex couples.

How’s that for a cold bucket of water?

Yes, the president personally supports same-sex marriage, but according to ABC News (who broke the story):

The president stressed that this is a personal position, and that he still supports the concept of states’ deciding the issue on their own.

In other words, the president does not believe the 14th Amendment mandates equal treatment of same sex couples.

Is that important? Remember Judge Walker overturning Proposition 8. Remember the heroic effort by Ted Olson and David Boies, the liberal/conservative dream team.  And most of all, remember their stirring federal argument, now making a long journey to the US Supreme Court:

There is no rational justification for this unique pattern of discrimination.  Proposition 8, and the irrational pattern of California’s regulation of marriage which it promulgates, advances no legitimate state interest.  All it does is label gay and lesbian persons as different, inferior, unequal, and disfavored.  And it brands their relationships as not the same, and less-approved than those enjoyed by opposite sex couples.  It stigmatizes gays and lesbians, classifies them as outcasts, and causes needless pain, isolation and humiliation.

If Barack Obama, a professor of Constitutional Law, were on the Supreme Court, he would vote against us.

Obama supports same-sex marriage, but he sees no Constitutional mandate. He thinks we should be treated equally, but he sees no Constitutional mandate. When it comes to this groundbreaking case, Barack Obama — believe it or not — is on the side of Maggie Gallagher, Brian Brown, and the National Organization for Marriage.

But is that important? I really don’t know. We’ve won a huge cultural victory today. I don’t regret my $100 Obama campaign donation and I don’t regret the two margaritas I had in celebration (though I had to stop blogging for a bit as I wondered how I got to the point where two margaritas were enough to make me tipsy).

No sitting president has ever done what Barack Obama has done. And his personal support for same-sex marriage, along with his view that DOMA is unconstitutional — presumably based on a Full Faith and Credit argument, rather than the 14th amendment — brings us oh-my-god-this-close to full equality, and sends a public game-changing message that likely won’t be diluted by Constitutional nitpicking. But in the midst of our celebration, we should still remember:

Barack Obama thinks the Equal Protection Clause of the 14th Amendment should not protect same-sex couples.

And now it’s time for a last margarita.

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7 comments to I’m Going to be Such a Bummer Now

  • 1
    BradP says:

    AMEN.  The chorus of hosannas has been deafening and tedious.  Obama’s argument is “I’m all for interracial marriage, and I wouldn’t have a problem if Maliah hooked up with a Korean kid, but if North Carolina wants to ban interracial marriage, they can do so.”

  • 2
    GM says:

    I get what you’re saying, but I have two items in defense of the Prez:
    First, marriage and domestic relations in general have always been state-law matters.  That’s what makes DOMA jurisdictionally offensive to the Obama administration.  Obama recognizes that there is little room for federal action in that sphere, whether in the form of DOMA or in the form of presidential fiat that SSM should be the law of the land.
    Second, I am sure BHO the constitutional scholar and BHO the SCOTUS justice would recognize it as a 14th-Amendment issue.  But for him to make it into an explicit constitutional issue would require that he, as the chief defender of the Constitution, take immediate and direct action or at least suggest cogent action against it.  And there’s little he could do politically (not to mention Realpolitikally) to remove perceived-unconstitutional state laws and constitutional provisions.  Hell, it’s hard to imagine what Congress could do (short of as the first step toward a constitutional amendment) that would make it a settled issue among the states. 
    The point is that this is a matter suited for the Supreme Court, just like Loving v. Texas.  Whether that comes to SCOTUS as challenge of current law (as with cases pending now) or as challenge to a future federally-legislated grant of same-sex marriage laws (because you KNOW that any federal law would be challenged in a hot second by the states). 

  • 3
    TomTallis says:

    I think that Obama’s position that DOMA is unconstitutional is based on the 10th Amendment, not the Full Faith and Credit Clause, and, obviously not on the 14th or 5th Amendments.

  • 4
    JCF says:

    I think you’re reading too much into the “states issue” thing.
    Yes, marriage IS a states issue . . . but THE COURTS will determine the 14th amendment (Equal Protection) applies, when DOMA is overturned. Which Obama is committed to, BOTH in terms of his DOJ, and in Congress.

  • 5
    Deeelaaach says:

    Obama is not our ideal protector in any legal sense.  But he is the best president in this sphere we’ve ever had.  He’s said he’s evolving.  Let’s hope he realizes that evolution is a process that never ends.  We may think of ourselves as “evolved” and he may think the same also, but that implies an end to evolution.  He’s been the best president for the LGBT ever, so lets give him a chance to evolve some more – and if he’s re-elected, he’ll have more of a chance to affect us if he continues to “evolve.” 

  • 6
    Emma says:

    Thank you for your as ever succinct take on the world. It’s such an odd feeling to be so elated and yet so demoralized, in the wake of North Carolina and yesterday’s presidential (if merely personal) endorsement of marriage equality. Feels like the day after he was elected four years ago, tempered by the heartbreak that was Proposition 8.
    But still, it felt good to wake up this morning realizing that, even if not perfect, yesterday was a historic moment in our national evolution on civil rights.

  • 7
    Matthew says:

    I think his answer was vague enough that I’m not precisely sure that is his position.  Perhaps he should be asked if he agrees or disagrees with Ted Olson’s legal theory (which is bigger than Prop 8) or the recently  filed case in NV which is not about taking away rights but whether he thinks the 14th amend is applicable or  not.  That would make it explicit.  Perhaps he should be asked whether Loving should be extended to same sex couples. 
    This is a constitutional question.  By saying it should be left to “the states” I don’t know what was meant by that — that the Congress should not have the authority to pass same sex marriage legislation nationally as Canada did?  He should clarify that. 

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