Same Gender Marriage: The Good, the Bad and the Ugly – President Obama, North Carolina, and Politics

The people of North Carolina voted this week to amend their constitution to ban same-sex marriage. And the ban won with a surprisingly strong 61 to 39 percent, undermining North Carolina’s image as a modern, progressive state. Very bad!

But, on a brighter note, the President of the United States, for the first time in history, declared his support for same-sex marriage. Better late than never, as this comes after years of waffling and talking about ‘evolving views’ on the subject. Still, something to celebrate.

The blogosphere is rife with speculation and second guessing – why did he do it, and what does it mean? How much is political, how much personal? Is this the result of pressure from gay marriage advocates and donors, Vice President Biden’s recent statement that he is “comfortable” with gay marriage or something else?

Probably all of the above and more, and despite my many criticisms of President Obama’s policies and positions, today I am proud of our president and the integrity and compassion he has shown in articulating his position and the rationale for it.

However, the president stressed that this is a personal position, and that he still supports the concept of states deciding the issue on their own. Yet, on Feb. 23, 2011, his administration, through a letter written by Attorney General Eric Holder, announced the administration’s view that Section 3 of the Defense of Marriage Act was unconstitutional.

The letter analyzed how classifications based on sexual orientation should be assessed under the equal protection clause of the Fourteenth Amendment, stating that because of several factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. Under the equal protection clause, laws classifying people are subjected to one of three levels of scrutiny – rational basis, intermediate scrutiny like that applied to sex-based classifications, or strict scrutiny like that applied to race-based classifications.

With some level of heightened scrutiny applied to sexual orientation classifications, the decision that DOMA’s definition of marriage was unconstitutional was quite clear. And that same level of scrutiny applied to sexual orientation classifications anywhere – at the federal, state and local, level, should similarly be deemed unconstitutional.

Therefore, Obama’s current policy position is arguably (hopefully) more than mere personal opinion. If the administration were still defending DOMA and had taken no position on the level of scrutiny to be applied to sexual orientation classifications, then President Obama’s statement could more easily be taken mean that he believes states have unfettered rights to legislate as they they wish on marriage.

But, that does not appear to be definitive. Rather, Obama’s position is that (a) he personally supports same-sex marriage; (b) he believes as a policy matter that state, and not federal, law should define marriages, as it always has been in this country; and (b) he believes that there are federal constitutional limitations on those state decisions.

Two significant gay-rights cases–one challenging California’s revocation of gay marriage, the other challenging the Defense of Marriage Act–are on their way toward the Supreme Court. President Obama’s statement of support for gay marriage helps bring gay marriage into the mainstream and increases its legitimacy. The DOJ position regarding heightened scrutiny will surely benefit the parties in cases on gay marriage heading to the Supreme Court. And together they help forge a path toward full marriage equality.

I learned recently from a Collaborative colleague active in LGBT issues, that the term of choice is same-gender, rather than same-sex, marriage, because really, it’s about gender, not about sex, so from here on that is the phrase I will use. And as a Collaborative family law attorney and mediator, I look forward to the day when marriages of any gender can marry (and divorce), all according to the same rules.

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