A Marriage Battle That States Can't Win

WASHINGTON -- President Obama is walking a tightrope on same-sex marriage, teetering between his stated view that marriage is the province of the states and his legal position that refusal to recognize same-sex marriage can violate the Constitution.

In his interview with ABC's Robin Roberts, the president emphasized the traditional state role in defining marriage. "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," he said.

Referring to Mitt Romney's support for a constitutional amendment to bar same-sex marriage, the president warned it would be "a mistake to try to make what has traditionally been a state issue into a national issue."

But in Loving v. Virginia, the Supreme Court's 1967 ruling that anti-miscegenation laws violate the equal protection and due process clauses of the Constitution, the justices did exactly what Obama counsels against. The decision transformed a state issue into a national one, because of the odiousness of discriminating on the basis of race and the fundamental importance of the right to marry.

"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men," Chief Justice Earl Warren wrote in Loving.

Federal courts are now grappling with the ruling's modern-day equivalent: whether those constitutional protections extend to same-sex couples. Under Obama's direction, the Justice Department took the extraordinary step of declining to defend the constitutionality of the Defense of Marriage Act (DOMA), the 1996 law that prohibits the federal government from recognizing same-sex marriages from states that perform them.

"We consider that a violation of (the) equal protection clause," Obama told Roberts. "I helped to prompt that move on the part of the Justice Department."

The stance of the Obama Justice Department in the DOMA cases can, for now, be squared with the president's states'-rights position. After all, in the pending litigation, the department is arguing in favor of the ability of states to define marriage on their own terms, rather than being dictated to by the federal government.

But the implications of the Justice Department's legal arguments point to an eventual clash with the president's leave-it-to-the-states approach. In its brief arguing that DOMA is unconstitutional, the department said that laws discriminating on the basis of sexual orientation should be subject to "heightened scrutiny" by courts. That would mean such laws could pass constitutional muster only if they are "substantially related to an important governmental objective."

DOMA, it contended, failed to meet that test. Citing earlier Supreme Court rulings, the Justice Department argued that the interests Congress asserted in passing DOMA, such as "defending traditional notions of morality" or "promoting heterosexuality," are not acceptable justifications.

"Discouraging homosexuality, in other words, is not a governmental interest that justifies sexual orientation discrimination," the brief stated.

Neither, it continued, is the notion of defending traditional heterosexual marriage. "As an initial matter, reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles," the brief said.

It would be a legal step further to argue against a state law that barred same-sex marriage. For example, the brief cited the mismatch between the federal government's purported goal of encouraging "traditional marriage" and the impact of DOMA, which would not prevent any same-sex marriage but merely deny such couples the attendant benefits under federal law. A challenge to a state law prohibiting same-sex marriage would be slightly weaker, under this analysis.

But the leap from not defending DOMA to taking a position that same-sex couples have a constitutional right to marry is not very great. Indeed, it seems almost preordained by the conclusion that sexual orientation is a classification, like race or gender, subject to heightened scrutiny.

Once that tougher test for justifying a law is triggered, the chance of it being deemed constitutional plummets, and rightly so. Where fundamental rights are involved, where the groups being targeted have a history of being discriminated against, their freedom to marry should not depend on whether they live in Mississippi or Massachusetts. The president, as a former constitutional law professor and, even more, as the son of a couple whose marriage would have been illegal in 22 states, surely understands this point. States, like presidents, evolve. But in the end, the rights of gay Americans, as those of African-Americans, cannot be left to majority whim.

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Ruth Marcus' email address is ruthmarcus(at symbol)washpost.com.