Why the Law Will Eventually 'Evolve' on Gay Marriage Just Like Obama Did
May 23, 2012 - 2:48pm ET
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Jeffrey Rosen will be a featured speaker at the Take Back the American Dream conference, convening June 18 to 20 in Washington, DC, as part of the panel "The Supreme Court & Constitutional Policy for Progressives." The following is an excerpt from an article originally published by The New Republic.
President Obama’s announcement that he supports same-sex marriage may have had an immediate impact on political discourse, but the same can’t be said of its implications for constitutional jurisprudence. For those hoping for a forthright defense of constitutional protections for gay rights, Obama’s announcement seemed to raise more questions than it settled.
Commentators were right to point out that Obama’s announced position—that he supports gay marriage, but every state should decide on the matter for itself—is inconsistent with the position his administration took last year in opposing the Defense of Marriage Act. Indeed, the Department of Justice announced that “strict scrutiny” of anti-marriage laws reveals them to be motivated by anti-gay animus, and thus unconstitutional; in other words, Attorney General Eric Holder suggested this was precisely an issue that states aren’t free to decide on their own.
In contrast with such bold declarations of principle, Obama famously cited the personal nature of his “evolution”: It was motivated, he said, by conversations he had with wife and his daughters about friends who have gay parents. But it would be hasty, not to mention cynical, to conclude that Obama invoked his family to avoid having to discuss constitutional protections for same-sex marriage. Rather, those invocations may have been a shrewd suggestion of how such protections can best be achieved.
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