Obama: Equal Protection Clause Demands Marriage Equality

President Obama continues his fake “evolution” on marriage equality. First he was all for it, while running for state office more than a decade ago. Then he was against it, when running for the Senate and for president. Then in 2012, he was suddenly for it (when the polls conveniently backed him), but thought it should be left to the states. Now he thinks the Constitution requires it. But, oddly, he thinks the Supreme Court was right not to rule that way in Windsor:

I asked him to name the best Supreme Court decision of his tenure. When the Court upheld the constitutionality of the Affordable Care Act, in 2012? When it struck down the Defense of Marriage Act, a year later? Neither, it turned out.

“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,” the President 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 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.” In the Loving decision, from 1967, the Court held that states could no longer ban racial intermarriage.

In other words, Obama’s favorite decision was one in which the Court allowed the political process to go forward, one state at a time. Not long ago, the President described his foreign-policy doctrine as one that “avoids errors. You hit singles, you hit doubles.” On same-sex marriage, the Supreme Court had hit a single, or maybe a double, and that was fine with him.

Obama opposed marriage equality until May of 2012. He told me that he now believes the Constitution requires all states to allow same-sex marriage, an argument that his Administration has not yet made before the Supreme Court. “Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” he said. “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.”

He might be right about that as a pragmatic matter, but if the Constitution requires marriage equality, shouldn’t the court have ruled that way? And when did he reach this conclusion, since during the 2012 election he argued the opposite, that the states had the proper authority on the matter? I’m glad he’s now on the right side of this issue, but the political nature of his “evolution” is transparently obvious. He took whatever position was politically convenient for him at every step, contradictions be damned.

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  • sundoga

    Eh, he’s just being a politician. It’s clear that Marriage Equality is not now, and never was, a point of great import for Obama; so he’s just going to let the dust settle without really committing to the cause.

    It’ll probably work for him, too. He’ll be remembered as the President who didn’t get in the way of equal marriage. Which isn’t terrible.

  • Alverant

    “if the Constitution requires marriage equality, shouldn’t the court have ruled that way?”

    As Scalia demonstrated, court rulings don’t always follow the Constitution.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    He took whatever position was politically convenient for him at every step, contradictions be damned.

    He bravely lead from the middle.

  • doublereed

    It’s bad, too, because when he came out in favor of same-sex marriage he actually convinced a lot of people. There’s actual consequences to leading from behind.

    And remember, he only changed his mind because Biden made a gaffe and forced his hand. He probably would have delayed even longer.

  • eric

    He took whatever position was politically convenient for him at every step, contradictions be damned.

    That’s 90% right, but not entirely right. Joe Biden should probably get some of the credit for the recent snowball of support for gay rights. In 2012 he put his foot in his political mouth in support of it – the administration had no intent at that point to do so. Few congresscritters would do so. But Biden’s comments elicited nothing more than a collective shrug from the majority of US citizens, and that is when mainstream democrats decided it was okay to publicly support gay rights. Because of Biden’s gaffe, and the lack-of-response to it.

    (OT, but the same could probably be said for Kerry’s 2013 gaffe about Syria’s chemical weapons.)

  • David C Brayton

    I hope Hillary nominates Barack for the Supreme Court.

  • John Pieret

    He might be right about that as a pragmatic matter, but if the Constitution requires marriage equality, shouldn’t the court have ruled that way?

    In an ideal world, sure, but Obama is right that decisions like Brown v. Board of Ed. and Roe v. Wade are few and far between and stir up tremendous social turmoil. So SCOTUS tends to move slowly. Loving v. Virginia was not decided, embarrassingly, until 1967, long after the beginning of the civil rights era and after even Congress (usually even slower to act than SCOTUS) had passed the Voting Rights Act.

  • Pierce R. Butler

    David C. Brayton @ # 6: I hope Hillary nominates Barack for the Supreme Court.

    You must feel really tired of us having a Bill of Rights, huh?

  • colnago80

    Re Brayton @ #6

    In an interview, Obama said that he was not interested in joining the SCOTUS

  • John Pieret

    Obama said that he was not interested in joining the SCOTUS

    That’s good, considering his chances of getting past a Republican filibuster, much less a Republican Senate.

  • http://www.pandasthumb.org Area Man

    I’m glad he’s now on the right side of this issue, but the political nature of his “evolution” is transparently obvious. He took whatever position was politically convenient for him at every step, contradictions be damned.

    I’m pretty sure this is true of every politician who has reached his level. You want to win elections, organize diverse groups of people, run major organizations and build alliances with others, you have to compromise and defer to popular will. You want to spout your own opinions for a living, you can tell the world to go fuck itself, but Obama’s chose profession requires a bit more intellectual adroitness. The issue of gay marriage just 10 years ago was toxic enough that Obama’s immediate predecessor ran on a platform of passing a constitutional amendment to ban it, cynically thinking the country was sufficiently anti-gay that they would proactively ban something that didn’t exist at the time, and indeed many states passed such amendments. It’s unreasonable to expect Obama not to have covered his ass over the issue at the time. People forget how far we’ve come since.

    At any rate, criticizing Obama over his record on gay rights of all things is ridiculous. He is far and away the most pro-gay rights president in history and has had a record of success that few presidents have on any issue (ended DADT, ended DOMA, protected gays who work for the federal govt. and contractors, and now marriage equality is progressing full steam). Maybe you think you know how to do it better than he did, which seems unlikely, but it’s hard to argue with the results. Seriously, this is like attacking Clinton over the economy or Bush for being too peaceful.