Obama Flexes His Law Professor Chops for Same-Sex Marriage; Bill Clinton Offers Semi-Apology for DOMA

President Obama has packed a lot onto his resume for a 51-year-old. His service as a community organizer has received the lion’s share of the attention on his pre-political activities; it is strangely easy to forget that Obama was a constitutional law professor for 12 years, at the University of Chicago.

Last week, Obama used his legal expertise to great effect. Last Thursday, the Justice Department entered a brief for the Supreme Court’s upcoming same-sex marriage hearings; the brief sets forth a remarkably robust legal foundation for equality. And as it turns out, Obama personally helped his Justice Department shape their case. As SCOTUSblog reported,

Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make. Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case.

Attorney, gay rights advocate, and Clinton administration official Richard Socarides called the brief “breathtaking” in an excellent blog post for the New Yorker.

Socarides sets the context, explaining the startling acceleration in support for gay marriage:

Until last May, the President was not even on record as supporting same-sex marriage. Early on during his first term, gay-rights advocates were enraged when the Justice Department filed a grossly insensitive, Bush-era brief in a lesser known gay-rights case. Because the federal government is not a party to the California case, he could have sat this one out, or asked the Supreme Court to rule on narrow procedural grounds that would bring marriage only to California.

Instead, his Administration has filed a brief that goes further than he ever has before, and further than the 9th Circuit Court of Appeals went in its reasoning when it affirmed the lower court’s ruling throwing out Proposition 8.

The Obama brief comes on the heels of another amicus curiae, or “friend of the Court” brief submitted by a group of Republicans that also surprised people for the depth of same-sex marriage support that it represented. Both briefs advocate overturning California’s Proposition 8. But Obama’s goes even further:

Importantly, however, the Administration goes on to say that any legislative classifications based upon sexual orientation–like laws that limit marriage to heterosexuals–in order to be justified constitutionally, should be subject to a standard of review known as “heightened scrutiny.” The implications of this argument are extremely broad.

Under heightened scrutiny, laws that hinge on sexual orientation are only constitutional if they are needed to advance a compelling or important government interest. Uniformly, in the gay-marriage cases, the only justifications put forth by opponents of marriage equality are those based on tradition, custom, or prejudice. Because those reasons are not “compelling,” the gay-marriage bans cannot survive the test.

The Washington Post pointed out that the Justice Department did not push for “a constitutional right to marry that would apply nationwide,” leaving some of the power in the hands of the states.

Finally, yesterday former President Bill Clinton came out against the Defense of Marriage Act—legislation that he himself signed into law—half-apologetically proclaiming that times have changed. Indeed they have.

The Harman Firm celebrates the continued rapid progress toward the equitable treatment of all Americans. See the rest of our blog posts about sexual orientation discrimination—and the work being done to end it. If you have any questions about the current, fast-changing laws on this or any other employment issue, our attorneys would be happy to help. Contact us today.