Same-sex marriage: a matter for states to decide or a constitutional right?

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I believe President Obama got it right last week when he told ABC’s Robin Roberts, “For me personally … I think same-sex couples should be able to get married.”

It was also a politically brave decision for Obama. Just the day before, voters in the critical battleground state of North Carolina voted 61 percent to 39 percent to enact a constitutional amendment banning same-sex marriage. Polls released this week show on balance President Obama’s position might have hurt him among independents more than it helped.

But a few seconds after Obama took his stand, he added: “I continue to believe that this is an issue that is going to be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as marriage.”

That position is questionable as a matter of constitutional law. In 1966, the Virginia Supreme Court, in Loving v. Virginia, upheld the state’s ban on interracial marriage — in part because “marriage has traditionally been subject to state regulation, without federal intervention, and, consequently, the regulation of marriage should be left to exclusive control by the 10th Amendment.”

But in 1967, a unanimous Supreme Court nullified Virginia’s ban on interracial marriage on the grounds it violated the Equal Protection and Due Process clauses of the 14th Amendment. “Marriage is one of the basic civil rights of man, fundamental to our very existence and survival,” Chief Justice Earl Warren (also author of the Brown decision) wrote. “The 14th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations.”

So the question is, can the words “sexual preference” be inserted for the words “racial” in this sentence from the Loving case? If so, then, as in Loving, all state laws discriminating between heterosexual and same-sex couples would be unconstitutional.

On February 20, 2012, the federal 9th Circuit Court of Appeals, by 2-1 split court majority, narrowly ruled that the result of California’s statewide vote, Proposition 8, banning same-sex marriage, was unconstitutional under the Equal Protection Clause of the 14th Amendment. Judge Stephen Reinhardt wrote that the decision was limited to California’s allegedly unique facts — a statewide vote withdrawing rights to same-sex marriage that local communities had previously permitted. However, the court went on to say: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status of human dignity of gay men and lesbians in California.” That sentence logically need not be limited to California.

In the earlier lower-court trial, U.S. District Court Judge Vaughn R. Walker, originally nominated by conservative Republican President Ronald Reagan and re-nominated by President George H.W. Bush and confirmed in 1989, in an evidentiary hearing found no facts or evidence that same-sex couples cannot have just as successful and enduring marriages, cannot be just as loving with one another or cannot be just as good parents as heterosexual couples. Therefore, Judge Walker held that a ban on same-sex marriage was flat-out unconstitutional — not just in California but across the nation.

I respect President Obama for making the political and pragmatic decision to take the first, courageous step of stating his own personal position supporting same-sex marriage while allowing states and local communities some time to decide for themselves. And many pro-gay marriage strategists were happy that the 9th Circuit tried to limit the decision to the particular situation faced by California, fearing a hostile U.S. Supreme Court decision if the 9th Circuit decision had been as broad as Judge Walker’s.

But my visceral reaction on this issue is: Either a ban on same-sex marriage is a violation of the Constitution or it is not. It can’t be a violation of the 14th Amendment in one state but not in another.

I certainly respect those whose religious faith causes them to oppose same-sex marriage. But our Constitution should not allow religious principles to trump constitutional ones.

If there is no fact-based evidence justifying discriminatory treatment between heterosexual and same-sex couples — and I have not seen any to date — I cannot understand allowing states to decide for themselves. State discretion wasn’t allowed for “separate but equal” segregated public education. And it shouldn’t be allowed for bans on same-sex marriage.

Lanny Davis, a Washington, D.C., attorney specializing in legal crisis management, served as Special Counsel to President Bill Clinton in 1996-98 and served as a member of President Bush’s Privacy and Civil Liberties Board in 2006-07. He currently serves as Special Counsel to Dilworth Paxson. He is the author of the forthcoming book, “Crisis Tales – Five Rules for Handling Scandal in Business, Politics and Life,” to be published by Simon & Schuster.

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