Obama Evolves Even Further, Denies That State Marriage Bans Are Constitutional

President Obama’s endorsement of marriage equality was an historic occasion, but he also qualified it somewhat by suggesting that states should continue to decide whether to discriminate against their citizens. In an interview released this morning with ABC News’ George Stephanopoulos, the president indicated that his views on marriage have evolved even further. He now says that he cannot imagine how a state’s decision to discriminate against same-sex couples could be constitutional:

“Well, I’ve gotta tell you that — in terms of practical politics, what I’ve seen is a healthy debate taking place state by state, and not every state has the exact same attitudes and cultural mores. And I — you know, my thinking was that this is traditionally a state issue and — that it will work itself out,” he said. “On the other hand — what I also believe is that the core principle that people don’t get discriminated against — that’s one of our core values. And it’s in our Constitution.”

Stephanopoulos then asked whether Obama could imagine a circumstance wherein a state’s gay marriage ban could pass constitutional muster. “Well, I can’t, personally. I cannot,” Obama responded. “That’s part of the reason I said, ultimately, I think that, same-sex couples should be able to marry. That’s my personal position. And, frankly, that’s the position that’s reflected — in the briefs that we filed — in the Supreme Court.”

This latest statement is exactly right. Marriage discrimination is unconstitutional because the Constitution’s Fourteenth Amendment — which was ratified after the Civil War for the specific purpose of limiting the states’ ability to discriminate — provides that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The Constitution could not be more explicit that its protections against discrimination apply to state lawmakers.


Despite this clarity, the Obama Administration’s brief largely suggests a two phase process in order to achieve marriage equality for all. The brief argues that all states which currently provide civil unions or similar arrangement for same-sex couples should instead allow those couples to marry, while punting on the question of whether other states must come into compliance with the Constitution. At the same time, however, the brief also recommends a legal standard that would inevitably lead to marriage discrimination laws being struck down nationwide.