A cloud in the silver lining of Obama’s new gay-marriage stand?

Some critics have found a cloud in the silver lining of President Obama’s endorsement of same-sex marriage. In his interview on ABC, Obama said not only that “I think same-sex couples should be able to get married” but that, if he were a state legislator, he would vote for legislation allowing gay marriage.

But he also said this: “And what you’re seeing is, I think, states working through this issue -- in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that’s a healthy process and a healthy debate. And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”

At Mother Jones magazine Adam Serwer complained that Obama’s position “accepts the legitimacy of states like North Carolina subjecting the rights of gays and lesbians to a popular vote.” According to this view, what Obama should have said was that he believes enactments such as North Carolina’s (and California’s Proposition 8) are unconstitutional.

But Chris Geidner of MetroWeekly argued that Obama already has said that in connection with its refusal to defend the Defense of Marriage Act in court. Geidner cited a letter from Atty. Gen. Eric H. Holder Jr. to House Speaker John A. Boehner in which that decision was justified by the president’s conclusion that “given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny” under the equal protection clause of the 14th Amendment. If the Supreme Court agreed, provisions like Prop. 8 probably would fall.

Wrote Geidner: “Obama’s position now is three-fold: (1) he personally supports same-sex marriage; (2) he believes as a policy matter that state, and not federal, law should define marriages, as it always has been in this country; and (3) he believes that there are federal constitutional limitations on those state decisions.”

That’s an ingenious argument, but if Obama believes that state laws against gay marriage are unconstitutional, why go on at such length about how healthy it is for the issue to be decided at the state level? Moreover, as other critics have pointed out, this “laboratories of democracy” argument for states rights is inconsistent with the expansive view of federal power the administration has espoused in the realm of immigration.

It does seem as though Obama wanted to cushion the effect of his genuinely historic endorsement of same-sex marriage. Not every desirable policy is constitutionally required, but if Geidner is correct, Obama already has signaled that he thinks the “laboratories of democracy” that produced bans on gay marriage were manned by mad scientists.

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