Constitution Check: Has the president endorsed a constitutional right to same-sex marriage?
Did President Obama, in his ABC interview, endorse a Constitutional right to same-sex marriage? Constitutional expert Lyle Denniston looks at four ways the president could endorse the legal right of same-sex couples to enter civil marriage that could be created and apply to all states – if he chose to do so.
The statement at issue:
“I think same-sex couples should be able to get married….I have to tell you that part of my hesitation on this has…been I didn’t want to nationalize the issue….I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”
– President Obama, in an interview May 9 with ABC-TV News correspondent Robin Roberts. The full transcript of the interview, on same-sex marriage and other topics, can be read here.
We checked the Constitution, and…
As a starting point, nothing in the Constitution – as now written and as presently understood – deals with the issue of same-sex marriage. Whether it should, of course, is now in active dispute in the courts. It might be argued that, because no power is given to the national government to deal with gay marriage, that it is an issue left to the states. But that does not settle whether it might, someday, be given a national character, as interracial marriage has been since the Supreme Court’s Loving v. Virginia decision in 1967.
There are four ways that a legal right of same-sex couples to enter civil marriage could be created and apply to all states – two methods under the Constitution, and two by act of Congress. President Obama, if taken at his word, has not endorsed any one of the four.
Previous Analysis On This Topic
On close examination of the president’s entire interview with ABC-TV, it probably is only fair to conclude that he personally favors giving a legal right to homosexuals and lesbians to marry but that he believes (for now, at least) that it should come by action in the state legislatures. He did not say that explicitly, and he did seem to want it to be available nationwide, but he discussed the issue so often in terms of state vs. national choice that his meaning appeared to be quite clear.
If same-sex marriage were to become a national right for gay couples, here are the four possible routes and explanations of why the president should not be understood to have endorsed any of them:
First, the most definitive route: a constitutional amendment, perhaps worded this way: “The right to enter civil marriage shall be equal and shall not be infringed on account of gender, notwithstanding any laws to the contrary.”
About Constitution Check
- In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.
The president’s repeated reference to marriage as a matter for state action and his opposition to those who support a constitutional amendment to ban gay marriage across the country probably indicates that his views would have to “evolve’ further before he would embrace this route.
Second, equally effective as an amendment though probably more controversial: a decision by the Supreme Court striking down a state law that banned same-sex marriage, with the decision based either on the concept of “equal protection of the laws” or “due process” – both guaranteed in the Fourteenth Amendment.
The president was asked explicitly in the interview whether he would ask the Justice Department “to join in the litigation in fighting states that are banning same-sex marriage.” He did not answer the question directly, instead pointing out that the Justice Department, at his prompting, has argued against the constitutionality of the 1966 federal Defense of Marriage Act (or DOMA). He said he agreed that the Act’s definition of marriage as between a man and a woman only (Section 3 of the Act) violates the right to “equal protection.”
But a decision in the courts to strike down DOMA would come under the Fifth Amendment Due Process Clause (interpreted to guarantee equal legal protection) and not under the 14th Amendment, and would not necessarily mean that a state ban – like California’s Proposition 8 – would have to fall. And 10th Amendment considerations would enter in that analysis.
Moreover, the Obama Administration, even while challenging DOMA’s ban, has taken no part in the court fight over Proposition 8, and it has clearly had the option to do so. It still could, if that case moved on to the Supreme Court, but nothing the president said hinted at such a role.
Third, and not likely to occur any time soon, a law passed by Congress to declare that marriage is a “privilege or immunity” of national citizenship, and may not be denied by any state law. Based upon the Constitution’s Supremacy Clause in Article VI and Congress’s power to enforce the 14th Amendment under that Amendment’s Section 5, such a measure would encounter stiff opposition under the 10th Amendment, and might not survive such a challenge.
The president said nothing to suggest that he would favor nationalization of civil marriage as a way to make it available to gay couples in all states.
Finally, and also not likely to occur any time soon, an act of Congress to declare that, under the power granted by Article IV’s Full Faith and Credit Clause, every state is required to accept the legality of every same-sex marriage performed in any state that allowed it. (Congress used that power to achieve the opposite result when it declared, in the Defense of Marriage Act’s Section 2, that no state would have to respect gay marriages performed in other states.)
Again the president said nothing to suggest that he would support this legislative approach, either. If he is not now actually opposed to national legislation on marriage, he certainly has yet to embrace it.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.