Last month, when President Obama finally
endorsed gay marriage after years of equivocation, he
emphasized that he still thinks states should be free to address
the issue as they see fit. Since many voters strongly oppose gay marriage, it is
clear why Obama advocates a federalist approach to the question.
But it is not clear that he logically can.

Obama’s inconsistency is illustrated by two cases involving gay
marriage that the Supreme Court could hear during its next term.
Two weeks ago, the U.S. Court of Appeals for the 1st Circuit

overturned a law that prohibits federal recognition of
state-licensed gay marriages, and last week the U.S. Court of
Appeals for the 9th Circuit
declined to reconsider a case in which it ruled against
California’s ban on gay marriage.

The 1st Circuit case
involves Section 3 of the Defense of Marriage Act (DOMA), which the
Obama administration stopped defending last year after concluding
it is unconstitutional. During the same May 9 ABC News
interview in which he declared that “same-sex couples should be
able to get married,” Obama said DOMA “tried to federalize what has
historically been state law.”

But Obama does not argue that DOMA violates the 10th Amendment
by impermissibly intruding on a power that the Constitution
reserves to the states. Instead he says the law violates the
guarantee of equal protection implicit in the Fifth Amendment’s Due
Process Clause.

As Attorney General Eric Holder
explained in a February 2011 letter, “the President and I have
concluded that classifications based on sexual orientation warrant
heightened scrutiny” under the Due Process Clause and that
DOMA’s distinction between heterosexual and homosexual couples
fails that test. If so, it is hard to see how the same distinction
at the state level could pass muster under the 14th Amendment,
which says “no state shall…deny to any person within
its jurisdiction the equal protection of
the laws.”

“If you believe the matter should

This article originally appeared on: http://reason.com/archives/2012/06/13/obamas-gay-marriage-contradiction