Missing Links in the President’s Evolution on Same-Sex Marriage

Abstract

The President is correct that marriage historically has been the province of the states. But that fact hardly insulates state marriage laws from equal protection challenges, as Loving v. Virginia makes clear. And that makes sense, for the Fourteenth Amendment reaches all state laws, regardless of their subject matters. Specifically, modern judicial doctrine “federalize[s]” and makes “a national issue” of the question of same-sex marriage, at least insofar as it subjects all state laws to some level of equal protection scrutiny. This fact about modern constitutional doctrine leaves the constitutional law professor-turned-President on the horns of a dilemma. He cannot simultaneously conclude that DOMA is unconstitutional under existing equal protection doctrine and yet also imagine that the states may constitutionally refuse to permit or recognize same-sex marriage. If federal laws should be subject to heightened scrutiny when they treat same-sex marriage differently from heterosexual marriage, then so must state laws that deny recognition for, or bar, same-sex marriages. Moreover, it is almost certain that the heightened scrutiny the President favors would lead to the wholesale invalidation of those state laws. In other words, the Obama Administration’s argument against DOMA, if applied to state laws, should generate nationwide uniformity. Each and every state will have to recognize same-sex marriages, at least so long as they recognize opposite-sex marriages. The President’s constitutional contortions cast doubt on the wisdom of a scheme where the Chief Executive may make independent constitutional determinations and act upon them, including declining to defend the constitutionality of certain federal laws. However much this critique may be true as applied to President Obama and same-sex marriage, one should not expect perfection from Presidents. This is not to excuse the President’s same-sex marriage contortions. It is only meant to suggest that when it comes to constitutional interpretation, each of us lives in a glass house. However imperfect any particular President might be, the institutional design question is whether the system of constitutional defense works best with the presidency actively defending the Constitution. If the system is better with active presidential involvement, as a supplement to judicial review and other protective mechanisms, it does not matter much that presidential defense measures, by themselves, are imperfect.