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.