Gay Marriage

Obama Knows Better on Question of States’ Rights Over Same-Sex Marriage

The president was wrong in asserting that states should be empowered to regulate gay marriage, says Jim Neal.

Allen Breed / AP Photos

I respect the joy that many Americans, especially members of the LGBT community, felt when President Obama announced last week that he personally supported gay marriage. As the first president to embrace same-sex marriage, his comments were of tremendous symbolic value. History will no doubt shine favorably on him. Words matter.

Nonetheless, his embrace of equality was a nuanced one. He pointedly said that his views were "personal" and acknowledged the "states’ rights" to define marriage as they saw fit. That caveat suggests that the president's evolution on gay equality is incomplete. My own view is that he has yet to cross the finish line and here's why:

North Carolinians had a full serving of states rights' crammed down our throats the day prior to the president's remarks, when voters endorsed a constitutional prohibition of gay marriage.

To a lot of us, that example of a state’s right tasted a lot like Jim Crow. I imagine there were many interracial couples who felt similarly when the president was born in 1961: then, 21 states outlawed interracial marriage—prohibiting the marriage of Mr. Obama's own parents.

Obama's nuanced acceptance of marriage equality falls short of the sort of unambiguous weight that President Johnson threw behind expanding federal civil-rights legislation that gutted the states' abilities to limit the voting rights of black Americans. LBJ declared outright war on the constitutional primacy of states’ rights over equality. And he won.

In his jolting speech before Congress in March 1965, Johnson said:

“There is no constitutional issue here. The command of the Constitution is plain. There is no moral issue. It is wrong—deadly wrong—to deny any of your fellow Americans the right to vote in this country. There is no issue of states’ rights or national rights. There is only the struggle for human rights.”

In the current political climate, Obama certainly could not muster passage of a marriage equality bill. However he could—and he should—acknowledge his personal view on the constitutionality of state laws that ban gay marriage in 31 states.

Obama taught constitutional law at the University of Chicago for the 12 years prior to his election to the Senate in 2004. So he is no doubt familiar with the landmark 1967 ruling in which all nine Supreme Court Justices voted to strike a blow at states’ rights' in those 17 states that still banned marriages between people of color and white people. In its ruling, the court stated: “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state.”

I personally believe that President Obama shares the convictions of President Johnson and the 1967 Supreme Court.

And words matter, Mr. President.