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Obama says states have no ‘good justification’ for banning marriage equality

Marriage equality Prop 8 Prop 8 trial Supreme Court

By Jacob Combs

President Obama believes that there is no compelling constitutional defense for state bans on marriage equality, BuzzFeed’s Chris Geidner reported today.

In an interview with George Stephanopoulos of ABC News, the president said that a state would need a ‘good justification’ explaining why it is necessary to treat same-sex couples differently from opposite-sex couples for the purposes of marriage.  When asked by Stephanopoulos if the president could imagine any such justification, he replied, “I can’t.  Personally.”

President Obama’s statement comes on the heels of a brief his solicitor general, Donald Verrilli, Jr., filed in a Supreme Court case challenging the constitutionality of California’s marriage equality ban, the voter-approved Proposition 8.  In that brief, Verrilli argued that Prop 8 should be considered by the high court under a judicial standard known as heightened scrutiny which requires the government to provide a compelling state interest furthered by a law in order for it to pass constitutional muster.

Obama’s answers in the ABC interview are broadly in line with the arguments laid out in Verrilli’s brief, which–if followed by the Court–could lead to a ruling extending marriage equality to California and the eight other states that currently offer or will soon offer marriage-like civil unions or domestic partnerships to same-sex couples.  Such a ruling, if it relied on heightened scrutiny, would likely lay the groundwork for future litigation that would bring about the end of marriage equality bans in states across the nation.

Here’s the crucial part of Obama’s answer, a response to Stephanopoulos’s question of whether the president believes the Constitution guarantees the freedom to marry to all Americans, regardless of their sexual orientation:

“Well, I’ve gotta tell you that in terms of practical politics, what I’ve seen is a healthy debate taking place state by state, and not every state has the exact same attitudes and cultural mores. And I–you know, my thinking was that this is traditionally a state issue and that it will work itself out.

“On the other hand, what I also believe is that the core principle that people don’t get discriminated against – that’s one of our core values. And it’s in our constitution. It’s in the, you know, 14th Amendment and the Equal Protection Clause. And … from a legal perspective, the bottom line is, is that gays have historically been discriminated against and I do think that courts have to apply what’s called heightened scrutiny, where they take a careful look.

“If there’s any reason for gays and lesbians to be treated differently, boy, the government better … have a really good … what I believe is that if the states don’t have a good justification for it, then it probably doesn’t stand up to constitutional muster.”

Stephanopoulos then asked, “Can you imagine one?”  In his reponse, the president said that he could not:

“I can’t, personally. I cannot. That’s part of the reason I said, ultimately, I think that, you know, same-sex couples should be able to marry. That’s my personal position. And, frankly, that’s the position that’s reflected in the briefs that we filed in the Supreme Court.

“My hope is that– the Court looks at the evidence and and in the California case, for example, the only reason presented for treating gays and lesbians differently was, ‘Well, they’re gay and lesbian.’ There wasn’t– a real rationale beyond that. In fact you know, all the other rights and and responsibilities of a civil union were identical to marriage. It’s just you couldn’t call it marriage.

Well, at that point, what you’re really sayin’ is ‘We’re just gonna treat these folks differently because of who they are.’ And I do not think that’s who are as Americans. And  frankly, I think American attitudes have evolved, just like mine have, pretty substantially and fairly quickly, and I think that’s a good thing.”

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