[Update: I cleaned up the entry some. There has been a lot of commentary on his remarks, including trying to parse them and determine that if you look real close, his views aren't crystal clear and there (the shock) is some haziness going on. See, e.g., here. I'll add here for some positive, though I don't agree with all the details; h/t Chris Hayes Twitter.
At some point, as I have said, I find this basically a stupid bit of navel gazing. This is how things work: change often works upward, national figures setting forth their views and national policy influencing the process some, eventually a tipping point resulting in a change in the national rule. Nor is it all crystal clear and neatly tied up in a bow. That is how we got to Lawrence v. Texas and that is how it will work in this area too.]
There is a general confusion over the Full Faith and Credit Clause. Many think it is an easy call: states need to recognize (give "full faith and credit") to out of state same sex marriages. But, this is wrong. The clause has always been interpreted to include a "public policy exception" in this field. We can establish a new rule, not likely to happen, and it would be a major change given it would logically not only apply in the area of marriages. We can appeal to equal protection (including as a component of the Due Process Clause) or some other later constitutional command, but that's a different argument. An interesting, if somewhat obscure, argument is that the provision requires "general" laws and a federal law like DOMA that singles out gays/lesbians is not one.
Meanwhile, if local public policy is against let's say cousin marriage, the state need not (though it can by grace and often do, the mini-DOMAs in fact particularly singular in this respect in various cases) under the FFCC recognize out of state same sex marriage. It cannot treat outsiders differently though. This shouldn't be too hard to understand unless it is accepted that South Carolina back in the day had to accept some sort of interracial marriage carried out in New York. In fact, Loving v. Virginia would have been an easy case -- the Lovings got married out of state where it was legal; the problem is that Virginia did not recognize such marriages.
I can understand some confusion, especially from non-lawyers, on this point. I don't claim to know all the nuances (e.g., legal judgments are treated more strictly than marriages -- a similar public policy exemption is not in place, though might in some minor ways) either. But, when law professors make claims like the title of this post, it does get a bit annoying. With a link, his problem: "According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended."
This is false. The position is that sexual orientation should get heightened scrutiny, in effect, treating it like gender. This doesn't mean an absolute rule is in place. There are exemptions in place for gender, e.g., including (right or wrong) in cases of statutory rape and some immigration cases. Affirmative action in fact underlines you can make "distinctions" even on the basis of race. The link refers to litigation not to the part of DOMA that reaffirms (if in a way perhaps troubling, if only mattering in a few cases) the power of states not to recognize out of state SSM but the prohibition of the federal government to recognize marriages. I am not aware of any case where this was applied to a couple who wanted to get a federal marriage license (let's say in Guam; D.C. recognizes SSM) where local rule doesn't allow it.
Prof. Adler here in comments adds that the FFCC gives Congress the power to make exceptions. Putting aside the "general" application rule, due process and other protections limit and clarify powers in the Constitution proper. The Administration argues that if a locality (or as to immigrants, a foreign state) recognizes same sex marriage, it is not reasonable to on that basis to deny federal benefits. It would be like if Congress made an exception for interracial marriages. Though the legal opinions might not emphasize the fact, marriages generally being a matter of local concern adds weight to the argument.
In some other context, maybe rejecting local rules would make more sense, such as an immigration measure. Marriage is different and at least one federal judge in DOMA cases has noted the point. Obama's comment here in effect furthers this 10th Amendment-type principle. It is not merely a "political" or strategic move on his part though that's part of it. Yes, the full logic of the position could make same sex marriage the law in every state though given the GLBT community was wary even with Prop 8 litigation, pressing the point is likely theoretical. But, following what he did, there is no "incoherence" here. IF a state accepts same sex marriage, including a foreign state, his administration supports supplying federal benefits. DOMA is a problem because it supplies a special rule that targets gays and lesbians without a good reason, when there wasn't even an interracial DOMA at the height of segregation. It isn't that any distinction is unconstitutional.
This might be somewhat technical at some point, but we are talking a law professor here. It shouldn't be too hard. Except, as many in that blog, they have a tendency to assume the worse for ideological reasons.
At some point, as I have said, I find this basically a stupid bit of navel gazing. This is how things work: change often works upward, national figures setting forth their views and national policy influencing the process some, eventually a tipping point resulting in a change in the national rule. Nor is it all crystal clear and neatly tied up in a bow. That is how we got to Lawrence v. Texas and that is how it will work in this area too.]
Article IV, Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
There is a general confusion over the Full Faith and Credit Clause. Many think it is an easy call: states need to recognize (give "full faith and credit") to out of state same sex marriages. But, this is wrong. The clause has always been interpreted to include a "public policy exception" in this field. We can establish a new rule, not likely to happen, and it would be a major change given it would logically not only apply in the area of marriages. We can appeal to equal protection (including as a component of the Due Process Clause) or some other later constitutional command, but that's a different argument. An interesting, if somewhat obscure, argument is that the provision requires "general" laws and a federal law like DOMA that singles out gays/lesbians is not one.
Meanwhile, if local public policy is against let's say cousin marriage, the state need not (though it can by grace and often do, the mini-DOMAs in fact particularly singular in this respect in various cases) under the FFCC recognize out of state same sex marriage. It cannot treat outsiders differently though. This shouldn't be too hard to understand unless it is accepted that South Carolina back in the day had to accept some sort of interracial marriage carried out in New York. In fact, Loving v. Virginia would have been an easy case -- the Lovings got married out of state where it was legal; the problem is that Virginia did not recognize such marriages.
I can understand some confusion, especially from non-lawyers, on this point. I don't claim to know all the nuances (e.g., legal judgments are treated more strictly than marriages -- a similar public policy exemption is not in place, though might in some minor ways) either. But, when law professors make claims like the title of this post, it does get a bit annoying. With a link, his problem: "According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended."
This is false. The position is that sexual orientation should get heightened scrutiny, in effect, treating it like gender. This doesn't mean an absolute rule is in place. There are exemptions in place for gender, e.g., including (right or wrong) in cases of statutory rape and some immigration cases. Affirmative action in fact underlines you can make "distinctions" even on the basis of race. The link refers to litigation not to the part of DOMA that reaffirms (if in a way perhaps troubling, if only mattering in a few cases) the power of states not to recognize out of state SSM but the prohibition of the federal government to recognize marriages. I am not aware of any case where this was applied to a couple who wanted to get a federal marriage license (let's say in Guam; D.C. recognizes SSM) where local rule doesn't allow it.
Prof. Adler here in comments adds that the FFCC gives Congress the power to make exceptions. Putting aside the "general" application rule, due process and other protections limit and clarify powers in the Constitution proper. The Administration argues that if a locality (or as to immigrants, a foreign state) recognizes same sex marriage, it is not reasonable to on that basis to deny federal benefits. It would be like if Congress made an exception for interracial marriages. Though the legal opinions might not emphasize the fact, marriages generally being a matter of local concern adds weight to the argument.
In some other context, maybe rejecting local rules would make more sense, such as an immigration measure. Marriage is different and at least one federal judge in DOMA cases has noted the point. Obama's comment here in effect furthers this 10th Amendment-type principle. It is not merely a "political" or strategic move on his part though that's part of it. Yes, the full logic of the position could make same sex marriage the law in every state though given the GLBT community was wary even with Prop 8 litigation, pressing the point is likely theoretical. But, following what he did, there is no "incoherence" here. IF a state accepts same sex marriage, including a foreign state, his administration supports supplying federal benefits. DOMA is a problem because it supplies a special rule that targets gays and lesbians without a good reason, when there wasn't even an interracial DOMA at the height of segregation. It isn't that any distinction is unconstitutional.
This might be somewhat technical at some point, but we are talking a law professor here. It shouldn't be too hard. Except, as many in that blog, they have a tendency to assume the worse for ideological reasons.