What will it mean for the law that President Obama has endorsed gay marriage? (Hallelujah!) Nothing and everything.
Nothing, because on several fronts the Obama administration has already taken the legal steps that are in line with the president’s newly enlightened position. Everything, because he’s the president and what he says on TV matters more than what his lawyers say in court.
Here’s where we’ve already been: Obama’s Justice Department withdrew more than a year ago from defending the Defense of Marriage Act’s definition of marriage as “a legal union between one man and one woman.” Attorney General Eric Holder started backing away from DOMA in suits brought by same-sex couples in Connecticut, Vermont, and New Hampshire. The idea in these cases is that in states that recognize same-sex marriage, the federal government should follow state law and stop denying the economic benefits of marriage—estate tax deductions, Social Security benefits, pensions, and the like—to married gay couples. In other words, they should be treated the same as heterosexual couples from the federal government’s point of view, in spite of DOMA.
When Holder said he couldn’t defend DOMA’s one man-one woman provision, House Republicans signed up former Solicitor General Paul Clement to argue for the law’s constitutionality. Clement did that before the U.S. Court of Appeals for the First Circuit last month in a similar Massachusetts case, which is about a postal worker named Nancy Gill and her wife, who wants to join Gill’s federal health care plan. The Justice Department then stayed out of a California case that is also about whether a gay spouse can receive federal benefits—which matters because California is the state that granted legal recognition to gay marriage via the courts and then took it away by passing Proposition 8 four years ago. House Republicans intervened for DOMA in this suit, too. In February, a district court judge rejected their argument and found the law unconstitutional. There’s another set of same-sex marriage challenges brought by Armed Forces veterans. The drill is similar: gay spouses seeking federal benefits, in Massachusetts, California, and Connecticut. And again, it’s the House Republicans rather than the Justice Department who are defending DOMA.
It’s the humble spousal-benefits cases for which gay-rights lawyers originally teed up in preparation of a same-sex challenge at the Supreme Court. Knocking out DOMA in states that have already recognized gay marriage would be an incremental step toward federal recognition, applying only to those states that take this step on their own. That’s far less dramatic than the attention-getting lawsuit to overturn California’s gay-marriage ban. But as the vote in North Carolina Tuesday for banning gay marriage shows, the incremental strategy has a lot going for it, politically. And the Obama decision to step away from DOMA is in sync with this approach. Though there’s precedent for it, the president doesn’t usually abandon federal laws in court. To do so in these cases sent a signal that to the president, DOMA was beyond the pale, a year before he explained why he himself would feel that way.
The administration was also ahead of the president on the immigration front. Attorney General Holder last year asked a panel of immigration judges to reconsider its decision to deport a gay man who wants to stay in the country with his civil-union partner in New Jersey. And federal officials have generally said that in deciding which illegal immigrants to pursue, a person’s community ties and contributions, “including family relationships,” should weigh in his or her favor for staying in the country. That includes lesbian and gay family ties, according to immigration advocates. And then of course, there’s Obama’s repeal of Don’t Ask, Don’t Tell.
As Mother Jones’ Adam Serwer points out, Obama caught up to his administration’s legal position today without going beyond it. He said “at a certain point I've just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married,” and he also said he thinks the states should decide the question of legalization for themselves.
But here’s where Obama’s shift today means everything: He went on television, with all the power and resonance of his office, to give gay marriage his clear and firm endorsement. His words will play everywhere, and everyone will understand them. That wasn’t true of Eric Holder’s lawyerly letter about DOMA, however important it has been. The positions that the government takes in court matter. But the gift President Obama gave the country today matters so much more.