The Oakland Press Blogs: The Law Blogger: POTUS and Same-Sex Marriage

This week, President Obama [POTUS] grabbed big headlines by endorsing same-sex marriage as a personally held belief. He admitted to changing his views on the subject [again] after discussing this issue with his wife and daughters, and perhaps, after Vice President Biden threw down the gauntlet, esssentially forcing the issue by asking, publicly, "what's wrong with it?"

Another Biden gaffe; or a script from the West Wing? Hard to tell when the Chief keeps changing his position on the issue...

Meanwhile, as this post is being written, the GOP nominee for November's presidential election, Mitt Romney, is preparing to give 39th commencement address at Liberty University; the Lynchburg, VA, conservative Christian college founded by the Reverend Jerry Falwell in 1971.

You have to wonder if Romney will take the opportunity to either: criticize President Obama's newly-held endorsement of the freedom to marry between two consenting adults; or to espouse his own view that a marriage must be between a man and a woman; as stated in the Bible and codified in the DOMA [the federal Defense of Marriage Act, ironically signed into law by President Clinton back in 1996].

Neither man has a choice at this point; the political battle lines are drawn. Obama cannot alienate a solid chunk of his core supporters by holding any other view than an unequivocal support of same-sex marriage. Similarly, if Romney, in addressing the marriage issue today, does not roundly criticize same sex marriage, he is done among moderate and conservative Republicans.

Executive branch politics aside, however, there is a group of interesting cases percolating through the federal court system on their way to the SCOTUS. These cases involve challenges to the DOMA or to state laws that define marriage to the exclusion of same-sex couples.

We here at the Law Blogger have been following this issue over the past few years; here are some of our earlier posts tracking the subject:

Illinois Becomes 6th State to Recognize Same-Sex Unions January 2011
Same-Sex Marriage Cases Go Constitutional April 2010

There are three cases in the same-sex marriage pack that seem to be headed toward SCOTUS for their ultimate resolutions; two of those cases present direct constitutional challenges to specific provisions of the federal DOMA; the other case [Perry] challenges the constitutionality of a state law ban on gay marriage.

Here are the Justia links for these leading cases:

Pedersen, et al -v- Office of Personnel Management [pending in Connecticut, but involving couples from that state as well as Vermont and New Hampshire];

Gill, et al -v- Office of Personnel Management [post-post-note: 1st Circuit declares DOMA, section 3, unconstitutional, case will surely go to SCOTUS]; and, of course,

Perry -v- Schwarzenegger [9th Circuit Court of Appeals recently -Feb 2012- affirmed lower court's ruling overturning California's ballot proposal ban on same-sex marriage].

Executive branch politics on this state-law issue will, of course, continue to play out in the media. The same-sex marriage issue could be the 21st Century version of the "abortion" bell weather with regard to a presidential candidate's personally-held beliefs.

Legalities of same sex marriage, however, will continue to be determined on a state-by-state basis, with the larger constitutional issues being determined by the SCOTUS, not by what a sitting President thinks.

On the other hand, Perry or one of the DOMA cases will most likely reach the SCOTUS at some point during the next presidential term. Therefore, the next President's opportunity to appoint a justice to the closely divided High Court will have a significant impact on the ultimate resolution of the issue.

Constitutional law experts compare this issue to the one decided by the High Court in the 1967 case of Loving -v- Virginia, striking Virginia's ban on inter-racial marriage as unconstitutional.

All we can do is to stay tuned on this...