October 27, 2012
By Jacob Combs
Updated to include a statement from the Obama campaign
Yesterday, in an interview with MTV, President Obama was asked, given his personal support of the freedom to marry for same-sex couples, whether or not he would favor a law granting marriage equality nationwide. In his response, the President said:
“First of all, I’ve been very clear about my belief that same-sex couple have to be treated before the eyes of the law the same way as heterosexual couples. I think that’s the right thing to do. It’s based on my personal experience, seeing loving couples who are committed to each other, raising kids and are just outstanding people. And I was supportive of civil unions, but they taught me, if you’re using different words, if you’re somehow singling them out, they don’t feel true equality.
“But what I’ve also said is, historically, marriages have been defined at the state level. And there’s a conversation going on … there’s some states that are still having the debate. And I think for us to try to legislate federally into this is probably the wrong way to go,” Obama continued. “The courts are going to be examining these issues. I’ve stood up and said I’m opposed to the so-called Defense of Marriage Act … I’ve said that’s wrong, [and] there are a couple of cases that are working their way through the courts, and my expectation is that Defense of Marriage Act will be overturned. But, ultimately, I believe that if we have that conversation at the state level, the evolution that’s taking place in this country will get us to a place where we are going to be recognizing everybody fairly.”
This statement wasn’t particularly newsworthy, since it conformed exactly to Obama’s previous statements on the subject: the President supports the right to marry for same-sex couples, has endorsed state measures that would do so this November, and opposes the so-called Defense of Marriage Act (DOMA), which withholds federal benefits from duly married same-sex couples.
But you wouldn’t know that from reading some of the mainstream coverage of Obama’s comments, including a report by ABC news this Friday, which read:
“During a live interview today inside the White House, President Obama told MTV viewers that when it comes to same-sex marriage, it would be up to future generations of Americans to implement meaningful reform. Asked if he would use his second term as a platform to overturn the Defense of Marriage Act, the president demurred, saying he viewed it as an issue for the states to decide.
“‘For us to try to legislate federally into this area is probably the wrong way to go,’ Obama told MTV presenter Sway Calloway, who asked questions submitted by youth voters.”
What’s surprising here is that such a statement would in fact constitute a major shift in administration policy–that is, were it true. President Obama has endorsed the Respect for Marriage Act, which would repeal DOMA and end federal marriage discrimination against same-sex couples married under the laws of the states in which they live. His Justice Department has opposed the law in court since February 2011, arguing that DOMA should be considered under the more skeptical constitutional test known as heightened scrutiny, a similar standard of review to that applied to laws that classify on the basis of sex.
That move has been significant in the progression of several DOMA cases through the federal judiciary, as several district courts and two circuit courts have ruled that the law is unconstitutional. Most recently, Chief Judge Dennis Jacobs of the Second Circuit (one of the circuit court’s more conservative members), wrote the majority opinion in a case called Windsor v. USA ruling that DOMA is unconstitutional on precisely the heightened scrutiny grounds outlined by the Obama administration. That opinion is without a doubt one of the most significant marriage equality developments to be handed down by the judiciary, and Obama’s Justice Department just yesterday specifically advocated the Supreme Court to take up Windsor when it considers DOMA in the coming term, as most legal observers expect it to, rather than one of the other three cases currently before the high court.
Marriage equality has not been a major issue in this year’s presidential election, so it seems likely that ABC’s reporting of Obama’s comments on MTV will be pulled under by the tide of other house-race coverage this weekend. But this significant mischaracterization of President Obama’s words and his administration’s position is extremely important, and worth correcting. As Tobias Barrington Wolff, professor of law at the University of Pennsylvania Law School, put it:
“The President has been calling for the repeal of the so-called “Defense of Marriage” Act for years, and he has strongly endorsed legislation in Congress that would get rid of that discriminatory statute. Repealing DOMA is about ending federal discrimination against married same-sex couples. It would mean that couples who are already married in Connecticut or California will be treated equally by the federal government. Eliminating discrimination at the federal level has been, and remains, a priority for the Obama administration.
“What repealing DOMA would not do is require marriage equality at the state level. Repealing DOMA would not change state law at all. And that is what MTV asked Mr. Obama: whether Congress should do something completely different and pass a law that would require all the States to recognize marriage equality at the state level. The President’s answer on that question was exactly correct: Marriage law has traditionally been treated as a state issue. Under current Supreme Court precedent, Congress would not have the power to pass such a law even if it wanted to.”
President Obama has been a strong supporter of LGBT rights. His words during the MTV interview are in no way a position of leaving the issue of marriage equality to future generations. The President has supported action against DOMA and its discriminatory effects both through the legislature and the judiciary, and this week he became the first sitting president in American history to formally endorse ballot measures in Washington, Maine and Maryland that would explicitly establish the freedom to marry for same-sex couples–even in the midst of a close election. Those were facts before the MTV statement, and they remain the facts after it.
Update (5:20 pm Eastern): Via an article by BuzzFeed’s Chris Geidner, the Obama campaign had the following to say regarding the interview:
“‘President Obama has been consistent since early in his administration in his support for repealing DOMA. The President has and continues to support the repeal of DOMA and he endorsed legislation currently pending in Congress that would do just that,’ Obama spokeswoman Clo Ewing told BuzzFeed.”