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Setting the record straight regarding President Obama’s MTV interview on marriage equality

Marriage equality

By Jacob Combs

Updated to include a statement from the Obama campaign

Yesterday, in an interview with MTV, President Obama was asked, given his personal support of the freedom to marry for same-sex couples, whether or not he would favor a law granting marriage equality nationwide. In his response, the President said:

“First of all, I’ve been very clear about my belief that same-sex couple have to be treated before the eyes of the law the same way as heterosexual couples. I think that’s the right thing to do. It’s based on my personal experience, seeing loving couples who are committed to each other, raising kids and are just outstanding people.  And I was supportive of civil unions, but they taught me, if you’re using different words, if you’re somehow singling them out, they don’t feel true equality.

“But what I’ve also said is, historically, marriages have been defined at the state level. And there’s a conversation going on … there’s some states that are still having the debate. And I think for us to try to legislate federally into this is probably the wrong way to go,” Obama continued. “The courts are going to be examining these issues. I’ve stood up and said I’m opposed to the so-called Defense of Marriage Act … I’ve said that’s wrong, [and] there are a couple of cases that are working their way through the courts, and my expectation is that Defense of Marriage Act will be overturned. But, ultimately, I believe that if we have that conversation at the state level, the evolution that’s taking place in this country will get us to a place where we are going to be recognizing everybody fairly.”

This statement wasn’t particularly newsworthy, since it conformed exactly to Obama’s previous statements on the subject: the President supports the right to marry for same-sex couples, has endorsed state measures that would do so this November, and opposes the so-called Defense of Marriage Act (DOMA), which withholds federal benefits from duly married same-sex couples.

But you wouldn’t know that from reading some of the mainstream coverage of Obama’s comments, including a report by ABC news this Friday, which read:

“During a live interview today inside the White House, President Obama told MTV viewers that when it comes to same-sex marriage, it would be up to future generations of Americans to implement meaningful reform.  Asked if he would use his second term as a platform to overturn the Defense of Marriage Act, the president demurred, saying he viewed it as an issue for the states to decide.

“‘For us to try to legislate federally into this area is probably the wrong way to go,’ Obama told MTV presenter Sway Calloway, who asked questions submitted by youth voters.”

What’s surprising here is that such a statement would in fact constitute a major shift in administration policy–that is, were it true. President Obama has endorsed the Respect for Marriage Act, which would repeal DOMA and end federal marriage discrimination against same-sex couples married under the laws of the states in which they live. His Justice Department has opposed the law in court since February 2011, arguing that DOMA should be considered under the more skeptical constitutional test known as heightened scrutiny, a similar standard of review to that applied to laws that classify on the basis of sex.

That move has been significant in the progression of several DOMA cases through the federal judiciary, as several district courts and two circuit courts have ruled that the law is unconstitutional.  Most recently, Chief Judge Dennis Jacobs of the Second Circuit (one of the circuit court’s more conservative members), wrote the majority opinion in a case called Windsor v. USA ruling that DOMA is unconstitutional on precisely the heightened scrutiny grounds outlined by the Obama administration.  That opinion is without a doubt one of the most significant marriage equality developments to be handed down by the judiciary, and Obama’s Justice Department just yesterday specifically advocated the Supreme Court to take up Windsor when it considers DOMA in the coming term, as most legal observers expect it to, rather than one of the other three cases currently before the high court.

Marriage equality has not been a major issue in this year’s presidential election, so it seems likely that ABC’s reporting of Obama’s comments on MTV will be pulled under by the tide of other house-race coverage this weekend.  But this significant mischaracterization of President Obama’s words and his administration’s position is extremely important, and worth correcting.  As Tobias Barrington Wolff, professor of law at the University of Pennsylvania Law School, put it:

“The President has been calling for the repeal of the so-called “Defense of Marriage” Act for years, and he has strongly endorsed legislation in Congress that would get rid of that discriminatory statute.  Repealing DOMA is about ending federal discrimination against married same-sex couples.  It would mean that couples who are already married in Connecticut or California will be treated equally by the federal government.  Eliminating discrimination at the federal level has been, and remains, a priority for the Obama administration.

“What repealing DOMA would not do is require marriage equality at the state level.  Repealing DOMA would not change state law at all.  And that is what MTV asked Mr. Obama: whether Congress should do something completely different and pass a law that would require all the States to recognize marriage equality at the state level.  The President’s answer on that question was exactly correct: Marriage law has traditionally been treated as a state issue.  Under current Supreme Court precedent, Congress would not have the power to pass such a law even if it wanted to.”

President Obama has been a strong supporter of LGBT rights.  His words during the MTV interview are in no way a position of leaving the issue of marriage equality to future generations.  The President has supported action against DOMA and its discriminatory effects both through the legislature and the judiciary, and this week he became the first sitting president in American history to formally endorse ballot measures in Washington, Maine and Maryland that would explicitly establish the freedom to marry for same-sex couples–even in the midst of a close election.  Those were facts before the MTV statement, and they remain the facts after it.

Update (5:20 pm Eastern): Via an article by BuzzFeed’s Chris Geidner, the Obama campaign had the following to say regarding the interview:

“‘President Obama has been consistent since early in his administration in his support for repealing DOMA. The President has and continues to support the repeal of DOMA and he endorsed legislation currently pending in Congress that would do just that,’ Obama spokeswoman Clo Ewing told BuzzFeed.”

9 Comments

  • 1. Seth from Maryland  |  October 27, 2012 at 3:33 pm

    [youtube jcqrX8S592U&feature=g-all-u http://www.youtube.com/watch?v=jcqrX8S592U&feature=g-all-u youtube]

  • 2. Seth from Maryland  |  October 27, 2012 at 3:35 pm

    Maryland ad that rips noms apart

  • 3. Derek Williams  |  October 27, 2012 at 6:35 pm

    The President is quite right. To be viable and long lasting, Marriage Equality must grow out of grassroots activism and a groundswell of public acceptance.

    Of course civil rights should not be subject to popular whim, but if the popular whim is intensely hostile to gays, then a presidential executive order or Supreme Court ruling will be unenforceable.

    Look at the political masterstroke that was DADT repeal, democratically enacted, and you see that the patience and political wisdom that the President has in abundance, will win LGBT reforms that will last.

  • 4. Gregory in SLC  |  October 28, 2012 at 11:52 am

    I appreciate the way you articulated this Derek. Frankly I was feeling a bit down after watching the MTV interview with Sway. I keep wishing for a sweeping Loving vs. Virginia ruling but President Obama indicates not the way to go…. in my heart I realize we are not there(yet). Your words brought me some perspective, a bit of solace…. thank you.

  • 5. Brave Kander  |  October 28, 2012 at 12:44 pm

    <img src="http://www.newautoquote.us/ikeas/loo.jpg"/&gt; Thanks for sharing your take on the MTV Jacob!<img src="http://www.newautoquote.us/xboz/jj.jpg"/&gt;

  • 6. RepublicanLutz  |  October 28, 2012 at 10:22 pm

    While I respect the President's opinion (and appreciate his support on the more general issue of gay marriage), I am not sure I can agree. Obviously I think the EPC does not allow states to ban SSM, so I will focus on the other parts of the debate over letting it be a state issue for now.

    I am confident that five votes currently exist on the Court to strike down all anti-SSM laws in the U.S. should the justices be forced to directly confront the issue. The four liberals are obviously a lock, and everything I know about Justice Kennedy tells me that he will not be part of a modern Plessy (or Bowers) kind of majority when push comes to shove.

    Of course, the justices don't yet have to deal with the issue. There is an "out" for them in the Prop 8 case that many suspect they will take. And even the best possible outcome in the DOMA cases will only be a heightened level of scrutiny which can then be applied against state bans in a future case.

    But if the matter of state-level bans were to be directly before the Court, I do believe we have the votes. I know many are worried that we do not and want to see the issue delayed for a more friendly Court. That is not an unreasonable opinion to have. However, there is also the real possibility of a near-future Court being less likely to support SSM as a matter of first impression. (I think there is an important discussion to be had regarding the differences between the first time the issue gets to the Court and a case where the matter has been the law of a land for a period of time. I think we don't get the vote of Roberts the first time around, but I also don't see him voting to overrule this particular precedent if the Court gets more conservative. This is not an area where I see him being activist.)

    That having been discussed, there is also the concern over backlash. Two general concerns are often expressed in this area.

    One is the possibility of a constitutional amendment. With all due respect to those who have such concerns, the numbers have shifted so significantly in our favor that this is no longer a serious threat. The Constitution makes amendments so difficult that in our current political reality it seems at times that only an amendment praising puppy dogs could get through. (And even then the cat lovers might object)

    The other concern is more realistic. People want SSM to be accepted and permanent. They don't want the lives of gay people to be constantly debated. And, of course, they don't want the issue to return to the courts again and again.

    It cannot be denied that there will be a backlash at the voting booth and in America's communities. And it is almost certainly true that the sooner a pro-SSM decision is handed down the louder those people will be.

    Where I think many people err in the analysis of this backlash is the comparison to Roe and abortion. Because the SCOTUS stepped in, the thinking goes, this country found itself in a decades-long debate that still goes on to this day. Maybe that's true, maybe it isn't, but either way, I think it is a mistake to then suggest that the same will hold true for other social issues.

    My opinion is that the issue of SSM and any possible backlash is best compared to issues of days gone by like interracial marriage*, segregation, etc. And I think the polls support my view. Certain issues trend in a positive direction even with "disruptive" court decisions factored in and gay equality appears to be one of them. There was a minor setback in public opinion after Lawrence and the MA marriage case, but that was a very temporary blip. (*With interracial marriage, America was still incredibly racist and opposed to interracial relationships when the SCOTUS struck down bans on such marriages. While it is often pointed out that many states had gotten more modern by the time of Loving, the polls show a country that was far more hostile to interracial marriage than today's nation is to the idea of gay relationships and marriage. Today we live in a much more tolerant world.)

    In summation, I think now is a good time to settle this issue on the national level.

    Anyway, I apologize for rambling (and any typos; I am typing/sending this on my phone via wi-fi), but I just wanted to share my .02.

    BTW, awesome site.

  • 7. davep  |  October 29, 2012 at 10:19 am

    Welcome to the P8TT site and thanks for your thoughts. BTW I am in awe of your ability to type all of that on a phone! : )

  • 8. grod  |  October 30, 2012 at 8:47 am

    Hi, I may be more receptive to your point of view once the ballot initiatives are determined.

  • 9. Prop 8 Trial Tracker &raq&hellip  |  October 29, 2012 at 10:32 am

    […] Setting the record straight regarding President Obama’s MTV interview on marriage equality […]

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