Pressed After Obama Inaugural Address, White House Maintains That Marriage is Not a Federal Issue

White House Press Secretary Jay Carney was asked today if the Obama administration's position on marriage has shifted following his inaugural remarks yesterday that "our journey is not complete 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."

CarneyIt has not, the Washington Blade reports:

NBC News’ Kristen Welker was first to ask whether the remarks — which suggested a national call to support marriage equality — represent a shift in Obama’s way of thinking from his previous position that marriage should be left to the states and not handled at the federal level.

“The President’s position on this has been clear in terms of his personal views,” Carney replied. “He believes that individuals who love each other should not be barred from marriage. He talks about this not about religious sacraments, but civil marriage. And that continues to inform his beliefs. We have taken position on various efforts to restrict the rights of Americans, which he generally thinks is a bad idea.”

Carney indicated that Obama’s believes Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, is unconstitutional based on the belief that the federal government shouldn’t be involved in marriage.

“One the reasons why we believe that Section 3 of DOMA is not constitutional is because we should not addressing it in that way,” Carney said.

Carney also said that the White House would not actively move to oppose Proposition 8, which sits before teh Supreme Court:

Well, as you know, the administration is not party to that case and I have nothing more for you on that. We have, as you, know through the Department of Justice taken an active role in DOMA cases, which is why I can tell you the things I told you about that. But on this Section 8 case, we’re not involved.

He later told Politico, "As you know, and I can make it clear, the president’s personal view is that it’s wrong to prevent couples who are in loving, committed relationships and want to marry from doing so. The values that the President cares most deeply about are how we treat one another, and respect one another. For him, it just boils down to treating others the way that we would want to be treated ourselves and the President has made it absolutely clear that his views are about civil marriage, as I said, not religious sacraments."


  1. James e. Pietrangelo, II says

    All those people who were gushing yesterday over Obama just got a reality check. As I’ve repeatedly said, Obama has suckered the lot of you. All he had to do was whisper “sweet nothings” in your ears and you laid down and let him walk all over you and actually do nothing for equality. Empty words. All talk and no action for equality.

  2. says

    Whatever the President would like them to do, the fact remains that asserting that marriage equality “should be left up to the states” includes their “right” to ban marriage equality and is like saying that voter laws or whom restaurants serve or where people sit on a public bus should be left up to the states. Because it is so obviously unconscionable, let alone unconstitutional, his persistence in asserting it is inexplicable.

  3. says

    Whatever the President would like them to do, the fact remains that asserting that marriage equality “should be left up to the states” includes their “right” to ban marriage equality and is like saying that voter laws or whom restaurants serve or where people sit on a public bus should be left up to the states. Because it is so obviously unconscionable, let alone unconstitutional, his persistence in asserting it is inexplicable.

  4. Bob says

    — The President can encourage equality, and he can encourage that FEDERAL law promotes equality, but he has absolutely no power over State laws and would justifiably be slammed for telling States to change laws.
    –it is NOT that “marriage equality should be left up to the States” — IT ALREADY IS
    — THE SUPREME COURT IS THE FEDERAL BODY THAT CAN INVALIDATE STATE LAWS AS UNCONSTITUTIONAL. The President cannot even legally remove DOMA on his own, let alone change State laws

  5. Belthazar says

    Contrary to James’ post, there is nothing inaccurate about what Carney said. Marriage is a States right issue [10th Amendment]. Additionally, I believe it is a stretch to try to use the “Necessary and Proper Clause” to grant the Federal Government power to define Marriage, which has historically rested with States. I think this is a hurled that DOMA faces.

    Concerning States (banning marriage equality), I believe it will come down to an Equal Protection argument ([without getting into Levels of Scrutiny] assuming cases are not removed on procedural grounds). States may have the right to define ‘marriage’, but EP prevents disparate treatment and impact in that definition. EP will also get you pass the [States] “Public Policy Doctrine” as to the application of the Full Faith and Credit Clause — although this could also be an argument unto itself.

  6. Derrick from Philly says

    Just googled the 14th Ammendment which ( I guess) is what the Civil Rights Act of 1964 tried to enforce. I’m trying to understand how the federal government can enforce civil rights nationwide. The law was an act of Congress, not just the executive branch.

    What type of action taken by the executive branch alone would force the states to accept marriage equality for Gay folks?

  7. RWG says

    If I am married in New York State, then drive to Ohio for a visit, am I suddenly unmarried? States should be compelled, at a minimum, to recognize the lawful marriages of citizens from other states. That is a Federal issue, a Constitutional issue, no matter how you look at it.

  8. says

    I am blue in the face from saying this;

    There is an obligation under Private International Law on the USA to recognise same sex marriages performed in a foreign state which has full jurisdiction, capacity, consent and conforms with the local formalities.
    Once the marriage is properly valid in , say the Netherlands, then it must be recognised in the USA.
    Otherwise the USA in in breach of International Law, not that that’s anything surprising ( think of the Geneva Conventions on torture).
    It’s time to grow up.

  9. Belthazar says

    @Derrick – none that I can think of.

    @RWG – For ‘straight’ couples, NO! For ‘gay’ couples, YES! This is where FF&C and States ‘Public Policy Doctrine’ comes into play. Ohio could argue that they do not have to recognize the NY marriage because it is against their Public Policy [although I still think there is a FF&C argument]. And, were are back to Equal Protection [14th Amendment].

    A read of Ari Ezra Waldman articles will offer some insight into the issues — difficult to articulate in a single post:

  10. says

    ATTENTION: willful attempts to distract—and innocent misunderstandings—aside the ISSUE is not that marriages be made “federal” but that:

    1. Withdrawing his nonsensical caveat about so-called “states rights” is as important a “message” to society generally and state legislatures and state election voters particularly as his “support” of marriage equality as a concept.

    2. If you don’t believe ME, try arguing with constitutional law expert Ted Olson who with David Boies convinced the California courts to declare Prop H8TE unconstitutional AND Freedom to Marry that his Administration entering a friend of the court brief to the Supremes urging them to overturn both Prop H8TE and DOMA would have a “great” positive effect. Over the journey of “Brown v. Board of Education,” briefs supporting integrating schools were submitted by first the Truman Administration, and, then, the Eisenhower Administration—and the Department of Justice published a 600 page analysis of the 14th Amendment arguing that it DID allow for the Court to intervene in such discrimination by the states—which helped lead to the 9-0 ruling to overturn the disaster of 1896 “Plessy v. Ferguson” which had allowed the “Separate is Equal” standard to stand.

    Again, the ILlogical extension of Mr. Obama’s position is that the states should also have the right to ban interracial marriage.

  11. Craig says

    I cringe when Carney gives this answer. The White House’s and thereby the President’s answer on this question is profoundly bigoted and homophobic. Yes, I’ll say it the President is a homophobe, not a Fred Phelps, raving lunatic kinda of homophobe, but a business suit homophobe not unlike the business suit racists who clung to the same discredited states rights mantra that would allow them to nicely say “I believe a white and a Negro should be able to marry, but it is a states issue and states should be allow to preserve the white race.” At every turn, Obama has done the least he can do to advance LGBT equality and plausibly lay claim to a being pro-LGBT equality. Since he was sworn in four years ago he has fired more people on account of their sexual orientation than any executive in America and continues to do so by his abject failure to extend basic employment protections on the basis of sexual orientation and gender identity to federal contractors hired by the Federal Government with out tax dollars, some of whom still openly discriminate, especially those in the defense industry. Obama is all talk, but the only time he takes action, takes an actual step forward, it is because we’re having to take out his knees with a crowbar. Far too many in the LGBT community are empowering the oppression against us by failing to hold our leaders and our “friends” accountable.

  12. Bob says

    Interracial Marriage was struck down because the Lovings sued the State of Virginia — it was appealed to the Supreme Court, which ruled it was unconstitutional, which meant all the other States’ laws banning interracial marriage were void.



  13. Belthazar says

    “Again, the ILlogical extension of Mr. Obama’s position is that the states should also have the right to ban interracial marriage.”

    That is a nonsensical statement. Saying that Marriage is a state right is so far from saying that the State has a right to discriminate [disparate treatment and impact], i.e., interracial marriage (Loving v Virginia) or same-sex marriage.

    As to your statement, “…so called States rights…” | due to the 10th Amendment, State’s rights are a very important issue. Otherwise, the logical conclusion of your argument is that the Federal Government can define marriage, which by extension means, the 1996 Congress could enacted DOMA. From there, the S-Court would hear the case under an EP analysis.

    I would argue (one of them) that the Federal Government exceeded their authority under the Constitution and thereby not authorized to enact DOMA because it is a States Right Issue, thereby getting rid of DOMA without having to make an EP argument — hence the importance of the continuing position that marriage is a States Right issue.

  14. Craig says

    @Bob, the questions being fired at Carney were precisely about the legal process which Obama can, but is saying he won’t, follow on the matter of marriage equality. The administration is being asked to file a brief of amicus curiae (friend of the court), explaining why they think Prop 8 is unconstitutional.

    In cases that involved federal rights and law (which is pretty much every Supreme Court case, though not all) and to which the United States is not a party, the United States can file an amicus curiae brief even if the Court doesn’t ask them to (which they sometimes do). It is not enough for Obama to decline to do so. They explain they are not because they say it is solely a state matter, which it patently is not since the very case you name, Loving v Virginia, recognized that there is a right to marry that is protected by the constitution against infringement by the states under both the Equal Protection and the Due Process Clauses of the 14th Amendment.

    That right has been affirmed by several subsequent cases having absolutely nothing to do with race. The federal right to marry embodied each person’s right to marry the mutually consenting spouse of their choosing unless the state can present a compelling state interest why they may not.

    By saying this is a states issue, Obama is saying gays don’t have a federal right to marry like heterosexuals. He is saying we are inferior to heterosexuals such as himself and that we not just have fewer rights, but that its states that should determine if we have those rights.

  15. says

    @ Belthazar: I’m truly sorry but I’m not licensed to treat willful invincible ignorance, and, beyond facts and common sense, have no tools to attempt to help you pull your head out of your ass. Perhaps your Mommy could call your local fire department, and ask for them to bring out the “jaws of life.”

  16. John says

    I’m not sure what the confusion is. There is no such thing as “federal marriages”.The federal government just recognizes marriages from states where they are valid. Repeal of DOMA would mean that the federal government would now have to recognize SS marriages as well. The whole premise of repealing DOMA is that MARRIAGE IS NOT A FEDERAL ISSUE. States regulate and issue marriage licenses.So yes Carney is right.

  17. Craig says

    There is no confusion except by those who are being willfully ignorant to protect Obama. There are no federal marriages, but there is a federal right to marry and if you don’t believe that to be true, there are something like 32 Supreme Court cases that say you are wrong including the ones dealing directly with marriage: Loving v Virginia (a unanimous case), Zablocki v Redhail and Turner v Safley. Here is a snippet from Zablocki:

    The leading decision of this Court on the right to marry is Loving v. Virginia, 388 U.S. 1 (1967). In that case, an interracial couple who had been convicted of violating Virginia’s miscegenation laws challenged the statutory scheme on both equal protection and due process grounds. The Court’s opinion could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause. But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry.

    Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. Long ago, in Maynard v. Hill, 125 U.S. 190 (1888), the Court characterized marriage as “the most important relation in life,” and as “the foundation of the family and of society, without which there would be neither civilization nor progress.”

    More recent decisions have established that the right to marry is part of the fundamental “right of privacy” implicit in the Fourteenth Amendment’s Due Process Clause.

    Cases subsequent to Griswold and Loving have routinely categorized the decision to marry as among the personal decisions protected by the right of privacy.

    It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.

    By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.

    end quote

    Just like abortion, contraception and procreation, there is a federal right even though they are ares where states have traditionally legislated. That does not lessen the FACT that the U.S. Constitution protects these rights of the people from infringement by the states.

  18. Bob says

    Not respeonding to Bedwell misguided rant
    However “there is a Federal right to marry” is misguided
    — THERE IS A FEDERAL RIGHT TO EQUALITY IN MARRIAGES GRANTED BY THE STATES, proven by Loving v Virginia, and about to be proved when the SCOTUS rules it to be true

  19. Craig says

    No, Bob, there is a FEDERAL right to marry. The Loving decision has two parts, one that said the law was unconstitutional because of the Equal Protection Clause and a second part that says it is also unconstitutional because it violates the right to marry protected by the Due Process Clause. Just read the damn quote I posted again. Here are two critical parts:

    The Court’s opinion could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause. But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry.

    More recent decisions have established that the right to marry is part of the fundamental “right of privacy” implicit in the Fourteenth Amendment’s Due Process Clause.

    end quote

    It is not that hard to understand. All it takes is reading and a little basic reading comprehension. So again in case you didn’t read it the second time: “More recent decisions have established that the right to marry is part of the fundamental “right of privacy” implicit in the Fourteenth Amendment’s Due Process Clause.”

    The right to marry is in the right to privacy which is in the Due Process Clause which is in the 14th Amendment which is in the U.S. Constitution which means THERE IS A FEDERAL RIGHT TO MARRY!!

  20. Belthazar says

    @Michael, your last post says so much more about you and your character than anything you have written. During a discussion (debate), the person that resorts to personal attacks shows lack of faith in their own position. And of course, you would likely say it was because you could not get your point across.

    I never personal attacked you and never will but I do realize that trying to have a rational conversation (even agreeing to disagree) with you is beyond you, as evidenced by your post.

    @Craig, no one is suggesting that the Constitution does not protect people “…from infringement by the states.” However, that does not negate the State’s ability to legislate — of course passing constitution muster. For example, States have different marriageable ages.

    Also, having a Federal right to marry and the Federal Government defining marriage are two different things. I believe the Gill case addressed the 10th amendment but was problematic because Kagan may have had to recuse herself which left the potential 4/4 split.

  21. Craig says

    Actually, Belthazar, someone is. Bob is saying there is a right to equality in marriage, but not to marriage. That is incorrect. The Equal Protection and Due Process jurisprudence on this is separate. There is a right to equal protection of the law and there is a right to marry, both protected by two separate clauses of the same amendment to the Constitution, the 14th.

    Also, I think you are conflating the cases before the Court. There are two separate, very distinct cases regarding marriage that the Supreme Court is hearing. First, there is Edie Windsor vs U.S. This case is the case involving DOMA. It is a case reviewing a federal, not state law. It is a case to which the United States is party (hence the title Windsor vs U.S.) and to which the United States has responded by not defending DOMA. The Administration has taken a position on that case.

    That is NOT the case that is the subject of the exchange with Jay Carney. Carney is being asked if the administration will file an amicus brief in the other marriage case, the Prop 8 case titled Hollingsworth vs Perry. Carney responded the United States is not a party to the case and that the President believes that it is a matter left to the states (the same position held by the racists that opposed desegregation, the same racists that defended slavery and the racists started the civil war to protect slavery). If you will notice, in Bob’s initial response to my post he asks what gives Obama the power to challenge STATE law. The answer is he can file an amicus brief opposing Prop 8. Carney was asked and was replying about the Prop 8 case. I was talking about the Prop 8 case. Bob was talking about the Prop 8 case. We were not talking about Windsor, a DOMA case, or Gill, a DOMA case that was not accepted for review or any other DOMA case.

    A discussion of the Federal right to marry in the two cases is relevant only to the Prop 8 case as California is denying the right to marry to its LGBT citizens. Yes the states can legislate, but not is a manner that designed to deny rights protected at the federal level. Yes, states can have different age requirements to a point. All states have to allow 18 years olds to marry. They cannot set it higher, but can choose to let younger persons marry under certain conditions. Moreover, age requirements are temporary unlike the Prop 8 restrictions, thus age is not a reasonable example to cite.

    If Montana decided they hate redheads and banned redheads from marrying in their state constitution, would it be improper for the Federal courts to examine the ban as potentially violative of the federal right to marry? Obama answer says they don’t have the right to marry because it is a state matter. It isn’t a state matter. it involves a federally protected right.

    As for Gill since you mention it, the Nixon appointee that heard the two Massachusetts cases at the District level did use the 10th Amendment as his justification, but the 1st Circuit explicitly discounted that basis when it affirmed DOMA unconstitutionality on other grounds. The Supreme Court accepted Windsor, where the 1st Circuit found DOMA unconstitutional on the basis of the Equal Protection component of the 5th Amendment’s Due Process Clause (which is very different than the Equal Protection Clause of the 14th Amendment which applies only to the states).

  22. Icebloo says

    You can bet that if slavery still existed or anything that meant black people had less rights Obama would MAKE that a Federal issue. Gay marriage is no different.

    I voted for him and I am a Democrat but they can’t pretend to support us with one hand but deny our rights with the other. They are just using us for our votes and our money.

  23. ***** says

    So many of these questions could have been answered if some of you had simply paid attention in your basic American Government class. You can not have taken the course that long ago. If all else fails, order a copy of “McGruders American Government American Government from Amazon. It will provide you with invaluable information for political arguments. It is the text you should have read when you were wasting your high school years smoking dope and chasing girls and sleeping your way through class while nursing that week-end hangover during your Monday morning class.

  24. ***** says

    Derrik said, What type of action taken by the executive branch alone would force the states to accept marriage equality for Gay folks?

    Derrik, the job of the executive branch of the government is to enforce federal law. They get those federal laws from one of two places. Federal law is passed by the House of Representatives and then by The Senate of the United States and transmitted to the President as the Chief Executive Officer of the Executive Branch who has the power to either sign the legislation into law or prevent it from becoming law by his use of his veto power. The other place that the Chief Executive get his laws for enforcing or not enforcing is from the rulings of the Supreme Court of the United States when they have declared a law to be either constitutional or unconstitutional. If the law is unconstitutional, the Court informs the executive branch and orders the executive branch to no longer consider the law to be a part of the US Codes.
    Without specific instructions from the Congress and his signature on a law, there is nothing that the President can do about marriage equality.
    To get down to brass tacks, without specific instructions from the Supreme Court of the United States, based upon some constitutional principle or from the Congress of the United States, there is nothing that the Chief Executive can do except express his personal opinion on the subject.

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