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

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Lanny Davis
Former Special Counsel to President Clinton
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      Lanny Davis

      Lanny J. Davis counsels individuals, corporations and government contractors, and those under congressional scrutiny, on crisis management and legal issues by developing legal, media and legislative strategies that are designed to best produce a successful result for the client. He has experience in securities fraud and SEC investigations as well, and has found that utilizing such an integrated legal/media/lobbying approach can lead to quicker and less expensive settlements or even successfully litigated outcomes. Senior officials of public companies have also hired Lanny and his crisis group to defend themselves successfully against "short and distort" attacks and other market manipulations. For 25 years prior to 1996, before his tenure as special counsel to President Clinton, Lanny was a commercial, antitrust, government contracts and False Claims Act litigator (both in defense as well as plaintiff). He has argued numerous appellate cases in the U.S. courts of appeals.

      In June 2005, President Bush appointed Lanny to serve on the five-member Privacy and Civil Liberties Oversight Board, created by the U.S. Congress as part of the 2005 Intelligence Reform Act. In that capacity, he received the highest level security clearances so that he could be fully briefed and "read in" to the various anti-terrorist surveillance and financial tracking programs at the highest classified level. From 1996 to 1998, Lanny served as special counsel to the president in the White House and was a spokesperson for the president and the White House on matters concerning campaign finance investigations and other legal issues. Lanny has participated in national, state and local politics for almost 30 years. He has served three terms (1980 to 1992) on the Democratic National Committee representing the state of Maryland, and during that period he served on the DNC Executive Committee and as chairman of the Eastern Region Caucus. In Montgomery County, Maryland, he served as chairman of the Washington Suburban Transit Commission.

      Lanny has authored several books and lectured throughout the United States and Europe on various political issues. Between 1990 and 1996, Lanny was a bimonthly commentator on Maryland politics for WAMU-88.5/FM, a Washington, D.C. local affiliate of National Public Radio. He has been a regular television commentator and has been a political and legal analyst for MSNBC, CNN, Fox Cable, CNBC and network TV news programs. He has published numerous op-ed/analysis pieces in the New York Times, the Wall Street Journal, he Washington Post and other national publications.

      Lanny graduated from Yale Law School, where he won the prestigious Thurman Arnold Moot Court prize and served on the Yale Law Journal. A graduate of Yale University, Lanny served as chairman of the Yale Daily News.

      Lanny is admitted to practice in the District of Columbia and Connecticut and before the Supreme Court of the United States and the U.S. Court of Appeals for the District of Columbia Circuit.

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.