WASHINGTON — Will President Obama say to the Supreme Court what he said to the American people in his second inaugural address about same-sex marriage?
Obama's remarks were striking, on several levels. First, that he dared to broach what was once a hot-button issue in such a high-stakes venue. Second, that he phrased the argument for same-sex marriage so passionately. Third, and perhaps most important, that he did so in a way that conflicted with his previous discussion of the issue.
Even as he completed his evolution in favor of same-sex marriage, Obama had earlier framed the issue as a matter of democratic choice: a right he supports but one that also should be left to individual states.
“Different communities are arriving at different conclusions, at different times. And I think that's a healthy process and a healthy debate,” he told ABC's Robin Roberts last May. “I continue to believe that this is an issue that is going to be worked out at the local level, because, historically, this has not been a federal issue, what's recognized as a marriage.”
Second inaugural Obama sounded far different. “Our journey is not complete,” he said, “until our gay brothers and sisters are treated like anyone else under the law — for if we are truly created equal, then surely the love we commit to one another must be equal as well.”
The law professor-turned-president understood full well the constitutional implications of this statement. Obama could have spoken about gay rights generally. Instead, he used language that directly implicates the question of marriage equality.
And language that is hard to reconcile with his previous, leave-it-to-the-states approach. The 14th Amendment guarantee of equal protection of the laws means mandating the same treatment in Mississippi as in Massachusetts, whatever those states might do on their own.
Obama knew this, and something else: The Supreme Court is about to confront the constitutional right to same-sex marriage. The case involves California's Proposition 8, the voter referendum overturning the state supreme court's ruling in favor of same-sex marriage.
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