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10/20/2014
POTUS believes in fifty-state equality, happy with way it's playing out
In an interview with Jeffrey Toobin for The New Yorker, President Obama cited the recent Supreme Court decision to not grant cert to any same-sex marriage cases as the best SCOTUS decision in his tenure:
I asked him to name the best Supreme Court decision of his tenure. When the Court upheld the constitutionality of the Affordable Care Act, in 2012? When it struck down the Defense of Marriage Act, a year later? Neither, it turned out.
“In some ways, the decision that was just handed down to not do anything about what states are doing on same-sex marriage may end up being as consequential—from my perspective, a positive sense—as anything that’s been done,” the President said. “Because I think it really signals that although the Court was not quite ready—it didn’t have sufficient votes to follow Loving v. Virginia and go ahead and indicate an equal-protection right across the board—it was a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up.” In the Loving decision, from 1967, the Court held that states could no longer ban racial intermarriage.
In other words, Obama’s favorite decision was one in which the Court allowed the political process to go forward, one state at a time. Not long ago, the President described his foreign-policy doctrine as one that “avoids errors. You hit singles, you hit doubles.” On same-sex marriage, the Supreme Court had hit a single, or maybe a double, and that was fine with him.
Obama opposed marriage equality until May of 2012. He told me that he now believes the Constitution requires all states to allow same-sex marriage, an argument that his Administration has not yet made before the Supreme Court. “Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” he said. “But, as you know, courts have always been strategic. There have been times where the stars were aligned and the Court, like a thunderbolt, issues a ruling like Brown v. Board of Education, but that’s pretty rare. And, given the direction of society, for the Court to have allowed the process to play out the way it has may make the shift less controversial and more lasting.
FUL: The Obama Brief [NYer]
Not sure I agree that the court didn't have sufficient votes. I suspect that's not the case at all, actually. I think it's much more that the court didn't see fit to jump in unless or until there is a dissenting opinion at the appeals level. And if/when this court jumps in, I think it's somewhat realistic to believe we might have six votes, even (I refuse to give up on Roberts, the major legacy-bearer for this court).
But it's fascinating to hear the president continue to put gay rights and marriage front and center. His commitment, once evolutionary, will go down in history as truly revolutionary.
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