Obama, Same-Sex Marriage, and the Fourteenth Amendment

American media is talking about President Obama's evolution on the issue of same-sex marriage -- how he now believes that the US Constitution requires states to allow same-sex couples to marry : "Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all 50 states," Obama told the New Yorker's Jeffrey Toobin, referring to 14th Amendment language requiring that states have valid reasons for discriminating between citizens. The President's remark is probably the Obama endgame on the topic of same-sex marriage. Last March, Obama stopped short of endorsing such a right, while saying that there was a "strong basis" for the Supreme Court to make such a finding : "I used to teach constitutional law and I think that there’s certainly a strong basis for determining that in fact in this age, given what we now know, given the changes that have been taking place in states around the country, that you know, same sex couples should be treated fairly and have the same rights to benefits and to being able to transfer property...all the rights and recognition that I think heterosexual couples do." The most dramatic shift in Obama's public views on the issue, which he described as "evolving" back in 2010, came in 2012 when he said he favored giving same-sex couples all the rights of marriage : "I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married," he told ABC about six months before his re-election. Obama's 2012 statement was in part an attempt to catch up to Vice President Biden's statement that same-sex marriage should be allowed -- note that Obama's endorsement today of a federal constitutional right to same-sex marriage also comes in the lead-up to a crucial election, in this case just three weeks before a midterm in which turning out the Democratic base will be critical to containing the party's likely losses in Congress. ~~~~~ Despite Obama's changing views, the Obama administration has never explicitly advocated a federal constitutional right to same-sex marriage. When the Supreme Court considered the issue of California's voter-approved ban on same-sex marriage last year, the US Justice Department argued that the state could not take away rights it had already granted, but the DOJ did not ask the Court to recognize a 50-state right to gay marriage. Obama also complicated the issue in many of his public remarks in recent years by seeming to favor a state-by-state approach that appeared to be at odds with the notion of a federal constitutional right. In the New Yorker Toobin interview, Obama analyzed the Supreme Court's recent decisions not to decide the same-sex marriage question - at least not in the cases from five states presented for review this past summer : "The decision that was just handed down to not do anything about what states are doing on same-sex marriage may end up being as consequential - from my perspective, a positive sense - as anything that’s been done....Because I think it really signals that although the Court was not quite ready - it didn’t have sufficient votes to follow Loving v. Virginia and go ahead and indicate an equal-protection right across the board - it was a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up with.” While the Justice Department has not yet filed a legal brief formally asserting the existence of a federal constitutional right to same-sex marriage, Attorney General Eric Holder said in an interview with Yahoo News last month that he believes such a right exists. ~~~~~ The Fourteenth Amendment is the most litigated part of the US Constitution, and the Equal Protection Clause is the most litigated part of the Fourteenth Amendment -- so let's look briefly at what the Equal Protection Clause says and how it has been interpreted by tbe US Supreme Court. Wkipedia gives a good history of the Fourteenth Amendment. It was adopted on July 9, 1868, as one of the Reconstruction Amendments after the Civil War. The Amendment addresses citizenship rights and equal protection of the laws, and was proposed in response to issues related to former slaves. The Amendment was bitterly contested, particularly by southern Cobfederacy states, which were forced to ratify it in order for them to regain representation in Congress. The Fourteenth Amendment, Section 1, forms the basis for landmark decisions such as Roe v. Wade (1973), regarding abortion, and Bush v. Gore (2000), regarding the 2000 presidential election. It limits the actions of all state and local officials or those acting on their behalf. The second, third, and fourth sections of the amendment are seldom litigated. The Amendment's first section includes several clauses: the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and the Equal Protection Clause that we will focus on, which requires each state to provide equal protection under the law to all people within its jurisdiction. This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision that precipitated the end of racial segregation, and for many other decisions rejecting irrational or unnecessary discrimination against people belonging to various groups. ~~~~~ Text : AMENDMENT XIV. Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ~~~~~ The Republicans who wrote the legislation for the Fourteenth Amendment and guided it through Congress in 1866 were satisfied that they had secured civil rights for Blacks, but were disappointed that the Amendment would not also secure their political rights, in particular the right to vote. The Equal Protection Clause itself was created in response to the lack of equal protection provided by law in states with Black Codes, where blacks could not sue, give evidence, or be witnesses. They also were punished more harshly than whites. The Supreme Court in Strauder v. West Virginia stated that the Equal Protection Clause was designed to assure to the "colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States." However, federal constitutional rights are limited to those situations where there is “state action,” meaning action of government officials who are exercising their governmental power. In Ex parte Virginia, 100 U.S 339 (1880), the Supreme Court found that the prohibitions of the Fourteenth Amendment "have reference to actions of the political body denominated by a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State." ~~~~~ Dear readers, while the Fourteenth Amendment's legislative history clearly shows that it was written to grant to Black Americans the rights and protections of the Constitution against attempts by various states to ignore those rights and protections, the language of the Amendment does not include any delimiting words -- "No State shall....deny to any person within its jurisdiction the equal protection of the laws." So while President Obama may be speaking for a minority of Americans in supporting a federal constitutional eight to same-sex marriage, the Supreme Court will most likely finally agree -- unless it decides that the Constitution protects only civil rights, which everyone is entitled to, but not religious rights protected by the First Amendment right to freedom of religion. This reasoning would protect pastors, priests and churches whose beliefs do not accept same-sex marriage. But it would mean that same-sex couples with a valid state marriage license could demand that a federal judge marry them. The only other choice -- repeal or amend the Fourteenth Amendment - a nearly impossible task in today's America.