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Monday, May 14, 2012

Obama's deceptions about federalism

I didn't really care all that much what President Obama said about gay marriage last week. I always assumed that he was for gay marriage just as he said in 1996 and that he was just pretending to be against it in 2004 and in his statements about "evolving." I don't see what there is to celebrate about his begrudging admitting that this was his real position last week when he still wasn't taking action to do anything about his views. But if gay rights activists are bought so easily by "just words," then I guess he can described as having done something historic. Otherwise, he appeased his base and solidified campaign donations. Mostly, all he did was send a thrill up the media's leg. And we know that the media are easy when it comes to Obama. Quite easy. They sell themselves cheap.

What did interest me was what he said in his interview about his view of federalism. He said that this was just his personal opinion and that he supported states being able to decide the issue for themselves, just as North Carolina and 30 other states have done. As Jonathan Adler wrote last week, this is not really true because of what his administration is saying about why they are not defending the Defense of Marriage Act.
The problem with the President’s position is that it cannot be reconciled with the Administration’s stance on the constitutionality of the Defense of Marriage Act. According to Attorney General Eric Holder, he and the President concluded that the constitutionality of legal distinctions based upon sexual preference cannot be defended. In their view, because DOMA precludes federal recognition of same-sex marriages, it violates the constitutional guarantee of equal protection under the Fifth Amendment. Further, according to Holder’s statement, they concluded that no “reasonable” constitutional argument could be made in DOMA’s defense. Yet if DOMA is unconstitutional under equal protection, which applies to the state and federal governments equally, then how could any state law barring recognition of same-sex marriages survive constitutional scrutiny? In other words, while the President says he believes that states should be allowed to reach “different conclusions at different times” on the question of same-sex marriage, the administration’s legal position is that a state’s refusal to treat opposite-sex and same-sex couples alike is unconstitutional. So while the President may say he’d like to leave this question to the states, that’s an option his administration has already taken off the table.
Read the rest of Adler's post for links and further analysis. If a right is guaranteed under equal protection then Obama's pretense of respecting the ability of states to make their own decisions just doesn't have any credibility. Of course, he only said that for political effect. While the population might be evenly divided on the issue of gay marriage, those opinions aren't evenly distributed throughout the country and those who are against gay marriage may predominate in some key swing states as Ohio and Virginia. And those who are going to vote on the basis of this issue were probably already going to vote Democratic.

Even if we were to accept what Adler calls the "incoherence of President Obama's stance on gay marriage," his deference to states, we know that he really doesn't respect the right or powers of states to make decisions at their own rate. Peter Kirsanow asks a few questions that explode the entire pretense that Obama cares one jot about states and their powers under federalism.
What other matters do you now believe should be decided on a state-by-state basis? Abortion? Participation in Obamacare?

Do you maintain that other issues related to equality or equal treatment should now be decided on a state-by-state basis also? Would that include equal treatment on the basis of race? Sex? National origin? Color? If not, why have you made a distinction between same-sex marriage equality and equality on the basis of race, sex, national origin, color, etc?
Good questions. We know that Obamacare just runs roughshod over federalism. Everything he has done in office demonstrates that he thinks decisions should be made in Washington and then mandated for the states.

So does anyone truly believe that he is fine with states deciding their position on gay marriage on their own? Of course not. He's still pretending and deceiving people.

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