Amidst the elation in Hollywood and on the left about Obama’s sudden flip-flop on gay marriage, gay rights activists are warning that Obama’s “evolution” on the issue is incomplete. His embrace of the position that “states should decide” not only runs into the leftist objection that racial discrimination was once a states’ rights issue, but also contradicts his administration’s decision not to defend the constitutionality of the Defense of Marriage Act (DOMA).
DOMA, enacted in 1996–with support of then-Senator Joe Biden and the signature of then-President Bill Clinton–allows states to deny recognition to same-sex marriages conducted in other states. Opponents of DOMA argue that it violates the Constitution’s “full faith and credit” clause. In addition, DOMA prevents the federal government from recognizing same-sex marriage.
In 2011, the Obama administration announced that it would no longer defend the constitutionality of DOMA, because it believed the law violated the Equal Protection Clause of the 14th Amedment. It was (and remains) a controversial position, not just because of the underlying issue of gay marriage, but because of the administration’s open defiance of Congress.
Obama’s new position in support of gay marriage fits well with his opposition to DOMA as regards federal recognition of same-sex marriages, but his resort to the states’ rights argument would seem to affirm one of DOMA’s central provisions.
That invites an important question: is the Obama administration now going to defend the states’ rights provisions of DOMA–and, if not, why is the left prepared to accept Obama’s continued prevarication on the issue?