States' Rights Enter Marriage Equality Debate

It was six months ago when US Attorney General Eric Holder wrote to Republican House Speaker John Boehner informing him that the Justice Department would no longer defend Section 3 of the Defense of Marriage Act (DOMA), which bars federal recognition of otherwise valid same-sex marriages.

The attorney general’s letter contained two powerful legal phrases –– “equal protection” and “heightened scrutiny” –– that significantly altered the administration’s posture toward DOMA, notwithstanding the fact that President Barack Obama’s position, dating back to at least the 2008 campaign, was that the 1996 law should be repealed.

“After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” Holder wrote of how the administration views the legal standard that DOMA should be judged by.

Laws that are not held to a heightened level of judicial scrutiny are normally presumed constitutional unless a court can find no plausible non-discriminatory justification for them. In defending laws that treat gay and lesbian Americans differently than others, Holder was saying, the government would have to provide a better, more compelling rationale.

His letter to Boehner continued, “The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.”

DOMA’s denial of federal recognition, the Justice Department concluded, violates the equal protection rights of married same-sex couples guaranteed by the Due Process Clause of the 5th Amendment.

In light of the June 24 victory of marriage equality here in New York State, it is important to remember that many other significant developments have ensued in the marriage fight nationwide, though the advance in Albany looms large in the bigger picture. Many of the other key developments since February have been steps taken by the Justice Department itself as well as by other parts of the administration.

The irony is that, in significant respects, Obama’s words have not kept pace with his own administration’s actions, and as a consequence even as he offers the gay and lesbian community hopeful signs of progress on marriage equality, his high wire refusal to simply embrace the concept outright continues to be a source of frustration –– but also of some heated debate within the community itself.

In fact, a recent formulation the president adopted –– in a June 29 press conference –– that on the issue of equal marriage rights, “each community is going to be different and each state is going to be different” provided fresh fodder for both criticism and angst.

The constitutional analysis presented in the attorney general’s February 23 letter to Boehner was occasioned by two challenges to DOMA, including one by Edie Windsor, a 77-year-old widow fighting an estate tax bill of more than $350,000 she received after the 2009 death of her spouse, Thea Spyer, whom she married in Toronto in 2007 after a relationship of more than 40 years. Even before New York legalized gay marriage, the prevailing court precedent was that the state and local governments here were bound to recognize valid same-sex unions from other jurisdictions.

Holder had previously defended DOMA in cases brought by married couples in Massachusetts as well as by that state. The attorney general noted that while the 1st Circuit, where the Massachusetts cases were argued, had an established precedent that “laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment,” no similar precedent existed in the 2nd Circuit, where Windsor’s case is being litigated. As a result, he maintained, DOJ took a fresh look at the issue of DOMA’s constitutionality.

Republican House leaders, already frustrated that they hadn’t won their majority soon enough to block repeal of Don’t Ask, Don’t Tell enacted right under the wire in late December, reacted with anger.

“It is regrettable that the Obama administration has opened this divisive issue at a time when Americans want their leaders to focus on jobs and the challenges facing our economy,” Boehner wrote, in a posting on the House speaker’s website. “The constitutionality of this law should be determined by the courts –– not by the president unilaterally.”

Consistent with congressional prerogatives, the GOP House leadership hired outside counsel to step in to the void left by DOJ.

The Justice Department has continued, gradually, to move the ball on DOMA since the Boehner letter. In June, it stated it will no longer oppose joint bankruptcy filings by same-sex married couples — an argument that even Boehner’s House Republicans were unwilling to engage — and on July 1, the government filed a brief, in a case involving the denial of same-sex spousal benefits to a federal court employee, affirmatively declaring that DOMA is unconstitutional.

And in May, Holder himself intervened to block the deportation of a New Jersey same-sex civil union partner, Paul Wilson Dorman, directing the federal Board of Immigration Appeals to reconsider the case with a specific focus on “how the constitutionality of DOMA is presented in this case.”

Over at the White House, press secretary Jay Carney was ready, willing, and able on July 19 to say that the president “is proud to support” the Respect for Marriage Act, which would repeal DOMA and grant federal government recognition to same-sex marriages approved by any state or foreign government, within hours of the measure being introduced in the Senate by California Democrat Diane Feinstein.

Again, opposition to DOMA was not new for Obama, but his willingness to endorse a bill the day it was introduced in Congress is at odds with his generally more aloof posture toward the Hill.

No doubt influenced by the shifting posture of the government itself, several Immigration Judges have offered respite to same-sex married couples. In June, a Baltimore judge, of her own volition, reopened the pending deportation of an El Salvadoran man married to an American man, citing “the interest of justice” and noting “current policy and/or legal developments” regarding same-sex spouses.

Several weeks later, a San Francisco Immigration Judge gave the government 60 days to decide whether to use prosecutorial discretion to halt deportation proceedings against Alex Benshimol, the Venezuelan same-sex spouse of an American.

And in June, the chief counsel in the Newark office of Immigration and Customs Enforcement, a unit of Homeland Security, used her prosecutorial discretion to declare that Henry Velandia, a Venezuelan immigrant married to an American man in Princeton, “is not an enforcement priority at this time” and to move that his deportation case be closed.

Each of these developments is significant, not only in the lives of the individuals involved, but also in suggesting that the Obama administration is willing to use the executive flexibility at its disposal to move policy toward better outcomes. It’s not surprising that these steps, taken together, would awaken curiosity in the media on the question of whether the president was now willing to endorse marriage equality.

The circumstance for that curiosity reaching critical mass was the enactment of the gay marriage law in New York –– but it proved a test where Obama was found wanting.

As circumstances would have it, the president was in New York City at an LGBT fundraiser the night before the critical vote took place in Albany. Standing before the well-heeled crowd, Obama said, “Right now, I understand there’s a little debate going on here in New York about whether to join five other states and DC in allowing civil marriage for gay couples. And I want to –– want to say that under the leadership of Governor Cuomo, with the support of Democrats and Republicans, New York is doing exactly what democracies are supposed to do.”

Which was good as far as it went. It was the next sentence that was the letdown.

“There’s a debate; there’s deliberation about what it means here in New York to treat people fairly in the eyes of the law,” the president concluded.

The message seemed to be that people in each of the states were free to decide “what it means… to treat people fairly.”

Obama doubled down on that message the following week during a press availability. Asked by NBC’s Chuck Todd if he believed “that marriage is a civil right,” the president began by talking about the steps his administration had taken on a variety of LGBT initiatives, and then reiterated his view of how marriage equality came to pass in Albany: “What happened in New York last week, I think, was a good thing, because what you saw was the people of New York having a debate, talking through these issues. It was contentious; it was emotional; but, ultimately, they made a decision to recognize civil marriage. And I think that’s exactly how things should work.”

Lest he leave the impression he was endorsing the decision made in New York, however, the president added, “I think it is important for us to work through these issues — because each community is going to be different and each state is going to be different — to work through them.”

In the view of many in the LGBT community, letting the states decide was a particularly unfortunate argument.

In a Daily Beast op-ed titled “States’ Rights Wrong for Marriage Equality,” Kerry Eleveld –– a former Washington correspondent for the Advocate who is now a senior fellow at, an LGBT equality unit of Media Matters –– wrote, “the president has been making a federalist argument for why the issue should be handled at the state level, despite the fact that the same rationale has historically served as a roadblock to civil-rights’ advancements.”

She quoted New Republic editor Richard Just’s 2010 observation that “While he may not realize it, Obama is already leading on gay marriage; he is just leading in the wrong direction.”

In the September issue of the Advocate, author and Sirius XM radio host Michelangelo Signorile first points to the history of states’ rights arguments being “used to justify segregation and all manner of discrimination in this country… back to slavery itself,” and then writes, “What is particularly glaring about President Obama invoking states’ rights is that, as a constitutional attorney and the product of an interracial marriage, he certainly knows it is a flawed and offensive argument, particularly with regard to civil rights.”

Writing on the Pam’s House Blend blog, the Reverend Irene Moore, an African-American graduate of Manhattan’s Union Theological Seminary who is working on a doctorate at the Harvard Divinity School, charged, “Obama harkens back to slavery with ‘states’ rights’ for same-sex marriage.”

To be sure, not all LGBT commentators have faulted Obama for his posture following the New York win. Writing on his Daily Beast blog, the Dish, Andrew Sullivan argued, “Civil marriage has always been a state matter in the US…. The attack on this legal regime was made by Republicans who violated every conservative principle in the book when they passed DOMA, and seized federal control over the subject by refusing for the first time ever not to recognize possible legal civil marriages in a state like Hawaii or Massachusetts.”

Sullivan also argued that, “until very recently, if we had had to resolve this issue at a federal level, marriage equality would have failed. The genius of federalism is that it allowed us to prove that marriage equality would not lead to catastrophe, that it has in fact coincided with a strengthening of straight marriage, that in many states now, the sky has not fallen… Obama’s defense of federalism in this instance is not a regressive throw-back; it is a pragmatic strategy.”

Sullivan’s argument that federal overreaching on gay marriage started with the Republicans finds an echo in filings made by two state attorneys general in opposition to DOMA –– Massachusetts’ Martha Coakley and New York’s Eric Schneiderman. In 2010, US District Court Judge Joseph Tauro ruled that the 1996 law violated the sovereign rights of Massachusetts by preventing the state from according equal treatment to same-sex married couples in programs administered jointly by the state and federal governments.

In a brief that Schneiderman filed this month in Edie Windsor’s lawsuit, the New York attorney general argues that “DOMA is an unprecedented intrusion into the power of the states to define marriage… It ‘has long been regarded as a virtually exclusive province of the States.’”

Crucially, however, Schneiderman, in a footnote, observes, “These federalism principles come into play only when state choices are impeded by federal legislation. Federalism concerns cannot, of course, protect state choices from the requirements of the federal Constitution; indeed, the Fourteenth Amendment was enacted for the specific purpose of overruling contrary state choices. Thus the federalism concerns invoked here would have no bearing on a claim that the Equal Protection Clause of the Fourteenth Amendment requires invalidating a state statute regulating same-sex marriage.”

Evan Wolfson, executive director of Freedom to Marry, made the exact same point.

“The one kernel of truth that some people invoke in making a states’ rights argument is that, historically, it is the states, in the first instance, who determine who may get married,” he told Gay City News. “But those requirements cannot fall below the floor provided by the US Constitution.”

The problem, Wolfson believes, is that Obama does not rely on the principle of state sovereignty for the same purpose for which Coakley and Schneiderman invoke it. Instead, he is using the argument as a political dodge.

“What is particularly unsatisfying is that the president is making these arguments at a time when we strongly suspect he knows otherwise,” Wolfson continued.” I do not think this president should be invoking states’ rights as a way to avoid saying that denying the freedom to marry is wrong. It rings inauthentic and untrue and is a jarring false note in his public posture, particularly in light of the recent actions of his administration.”

Terming the resort to a states’ rights argument “historically shameful and constitutionally inaccurate,” Wolfson said the president’s recent words “illustrate how increasingly untenable is his unwillingness to be forthright about the right to marry.”

Like Signorile, Wolfson noted that the marriage of Obama’s parents would have been illegal in many states at the time of his birth, six years before the1967 Supreme Court ruling in Loving v. Virginia.

Wolfson’s perspective challenges Sullivan’s argument not only on policy and legal grounds but also on the politics. The time is now ripe, Freedom to Marry believes, for federal officeholders to step forward in a leadership role in advancing marriage equality.

In late July, Dr. Jan van Lohuizen, a top pollster to former President George W. Bush, and Joel Benenson, who since 2008 has been Obama’s lead pollster, released a memo commissioned by the group that shows that most polls now find that a majority of Americans support gay and lesbian couples’ right to marry. Beyond that result, Wolfson underscored four other key signs of progress –– that in the past several years, support has been growing at an accelerating pace; that the growing majority is fueled by a powerful demographic trend of young people strongly favoring equality; that older Americans, many of them independents, some of them Republicans, who once opposed marriage equality are now in support; and that, for the first time, the percentage who strongly favor gay marriage exceeds those who strongly oppose it.

“The argument we make to the president and others is that it is no longer 1996,” Wolfson said. “It’s not even 2008 anymore.”

Freedom to Marry’s homepage includes a petition, signed by more than 117,000 people, asking the president “to complete your journey and join us, and the majority of Americans, who support the freedom to marry.”

“We wouldn’t be putting it out now if we didn’t think there was an opportunity to move the president and many other elected officials,” Wolfson said.

Asked if Freedom to Marry had received signs from the White House that additional pressure and more signatures could move Obama prior to November 2012, he reiterated,” We are pushing hard.”

Much like the president himself told reporters at his June 29 press conference, Wolfson was “not going to make news” –– at least not that day.