NYT } Obama Has Come to Understand Gay Marriage is Much a Fundamental Right as Straight Marriage

New York Times EDITORIAL

Beyond Selma-to-Stonewall       

 

By including gay rights in the arc of the struggle for civil rights — the road “through Seneca Falls and Selma and Stonewall” — President Obama linked his presidency to ending antigay discrimination and underscored the legal wrong of denying gay people the freedom to marry.

 “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” Mr. Obama famously said in his second Inaugural Address, “for if we are truly created equal, then surely the love we commit to one another must be equal as well.”

Now that Mr. Obama has declared that he believes denying gay people the right to wed is not only unfair and morally wrong but also legally unsupportable, the urgent question is how he will translate his words into action. To start, he should have his solicitor general file a brief in the Proposition 8 case being argued before the Supreme Courtin March, saying that California’s voter-approved ban on same-sex marriage is unconstitutional.

Just a day after the inauguration, Mr. Obama’s spokesman, Jay Carney, said that while Mr. Obama supports same-sex marriage as a policy matter, the president still believes it is an issue for individual states to decide. That was Mr. Obama’s formulation when he first announced his support for same-sex marriage in May, and even then it made no sense, except perhaps as political cover approaching the general election campaign.

Marriage is traditionally regulated by the states, but there are constitutional limits on what states may do. The Supreme Court’s 1967 ruling in Loving v. Virginia prevented states from forbidding marriages between interracial couples like Mr. Obama’s own parents.

Furthermore, the day after the Proposition 8 case is argued, the Justice Department will be asking the Supreme Court to invalidate the Defense of Marriage Act, the atrocious 1996 statute that denies federal benefits to lawfully married same-sex couples. The government will be arguing that discrimination against gay people, a vulnerable minority group, is presumptively unconstitutional. It is hard to see how the marriage act’s discrimination is presumptively invalid but not California’s wiping out of existing marriage rights for gay people that were mandated by the state’s top court.

The outcome of the Proposition 8 case is likely to affect the lives of gay, lesbian and bisexual Americans for years to come, even if the final disposition is not sweeping enough to wipe out all state laws currently banning same-sex marriage. A strong filing by the Justice Department, forthrightly declaring that denying the freedom to marry violates the Constitution, would put the full weight of the federal government on the side of justice and could influence the shape of the ruling.

For the administration to be missing in action in this showdown risks conveying a message to the justices that it lacks confidence in the constitutional claims for ending gay people’s exclusion from marriage or that it believes Americans are not ready for a high court ruling making marriage equality the law of the land — impressions strikingly contradicted by legal precedent, the lessons of history and by the president’s own very powerful words.

Mr. Obama’s Inaugural Address appeared to reflect a deepened understanding that the right to marry the person of one’s choice is a fundamental right “under the law.” He needs to make sure his solicitor general conveys that sound legal view loud and clear in the Proposition 8 case.