Obama Pitched Gay Marriage to the Justices—Without Setting Foot in Court

By Kerry Eleveld

Activists have been clamoring for the White House to weigh in on an upcoming Supreme Court case. With his inaugural address, the president did them one better.

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Reuters

On Monday, President Obama made gay-rights history during his inaugural address.

"We the people declare today that the most evident of truth that all of us are created equal -- is the star that guides us still; just as it guided our forebears through Seneca Falls and Selma and Stonewall," Obama said. "Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law, for if we are truly created equal, then surely the love we commit to one another must be equal, as well."

And on Tuesday, Press Secretary Jay Carney dutifully repeated a well-worn line to reporters at the White House briefing. "The president believes that it's an issue that should be addressed by the states," Carney said.

Ah, yes. The states! If it was a letdown to hear the White House bungle its same-sex-marriage message just one day after President Obama made a historic statement at the inauguration, it was also oh-so predictable. Those of us who have followed every step of Obama's dance with marriage equality are used to this herky-jerky, two-steps-forward-one-step-back tango by now.

When the president instructed his Department of Justice to stop defending the Defense of Marriage Act in 2011, the White House continued to insist that the definition of marriage should be left to the states. When Obama announced last year that for him, "personally" it was important to affirm his support for marriage equality, the White House maintained it was still a matter for the states to decide. Even as Obama's campaign weighed in favorably last November on pro-gay-marriage ballot measures in Maine, Maryland, and Washington (not to mention opposing the anti-gay Minnesota amendment as "divisive and discriminatory"), the White House persisted: It's a state issue.

As one might expect, given this twisted history of parsing, when Carney trotted out the states' rights argument this time, it came limping back: White House reporters -- who likely feel their intelligence has been insulted one time too many on this issue -- piled on with questions about the rationale.

Was the display disheartening for marriage-equality proponents? Sure. And as a former reporter, I believe what the White House says at the briefing generally matters. But in this instance, Tuesday's tomfoolery was mere Beltway theater toiling in the shadows of Monday's monumental national stage.

Ever since December, when the Supreme Court announced that it would hear Hollingsworth v. Perry -- a case that could determine whether same-sex couples have a constitutional right to marry nationwide -- LGBT advocates have been clamoring for the White House to weigh in on the case by writing what's known as a "friend of the court" brief. And so far, the White House has declined to do so. "As you know," Carney reminded reporters, "the administration is not a party to that case and I have nothing more for you on that."

It would have been shocking to see Carney make the announcement that administration now believes same-sex marriage is a constitutionally protected fundamental right. But make no mistake: What Obama did in his inaugural speech Monday was in many ways more profound than filing an amicus brief.

As CNN's Jeffrey Toobin noted, the nine Supreme Court justices who will soon rule on questions of marriage looked on just feet away while the nation's first black president linked the struggle of LGBT-rights activists with those of the African-American and women's-rights activists who came before them.

In legal terms, that could have a very specific implication. Both blacks and women are groups  legally considered to have suffered a level of discrimination worthy of a higher standard of judicial review. This designation subjects laws classifying people by race or sex to heightened scrutiny, requiring that the government provide a strong justification for the law. And while the Supreme Court has never applied that standard to gays, Attorney General Eric Holder declared in February 2011 he thought heightened scrutiny was the appropriate standard for laws treating them differently, and that DOMA was therefore unconstitutional.

In symbolic terms, the president's sentiment is even more important. It demonstrates that the man who is by his very presence in the Oval Office the greatest civil-rights achievement of this nation, views the cause of lesbian, gay, bisexual, and transgender Americans in a similar light to those of other great movements. It is, in fact, a statement that urges a milestone ruling from the court that would recall landmark decisions such as Brown v. Board of Education in 1954 or Loving v. Virginia in 1967.

Obama rooted that vision in the most fundamental of truths that our forebears claimed self-evident at the birth of this nation: that we are all created equal. "For if we are truly created equal, then surely the love we commit to one another must be equal as well," Obama argued.

The president knows that the likelihood of advancing that journey by passing legislation that, for instance, repeals DOMA, will remain pretty low as long as the House remains in Republican hands. So instead, he took his case directly to the court, letting the justices know exactly where he stands on the issue when it comes before them at the end of March.

As Obama put it, "History tells us that while these truths may be self-evident, they have never been self-executing." So I applaud the efforts of groups such as Equality California and the Human Rights Campaign that continue to press Obama on this matter. And would I like to see the administration file a brief declaring the constitutional right of same-sex couples to marry? Absolutely.

But if you think one day in the Brady Press Briefing Room somehow compares to the pedestal on which Obama placed the freedom of LGBT Americans to pursue their happiness, think again.

This article available online at:

http://www.theatlantic.com/politics/archive/2013/01/obama-pitched-gay-marriage-to-the-justices-without-setting-foot-in-court/267438/