Just as we predicted, President Obama’s position on marriage has evolved once again. In an amicus brief filed Thursday, the administration urged the Supreme Court to strike down California’s Proposition 8 — the 2008 ballot initiative that reaffirmed that marriage is the union of a man and a woman.
As you may recall, until last May, the president himself supported civil unions for same-sex couples but maintained that “marriage is between a man and a woman.” His administration’s amicus brief now contends that this position is not merely wrong but unconstitutional. Also supposedly unconstitutional is the position Obama took between last summer and Thursday: that the definition of marriage should be set by state governments.
According to the amicus brief, California — and, by implication, all other states that provide full civil unions — may not provide same-sex couples all the legal incidents of marriage without also conferring the designation of marriage: To provide the former but not the latter is a violation of the 14th Amendment’s equal-protection clause. Everyone paying attention understands what the next step in the administration’s evolution will be: It will claim that all states, whatever their policies on civil unions, are constitutionally required to recognize same-sex marriage. The president has already confirmed that this is his view.
Proposition 8 is routinely said to “ban” gay marriage. It does not forbid any private conduct: Any two (or more) people may call themselves married, and any church may bless their union. What is at stake is not liberty but official recognition. The recognition of marriages — singling them out from the vast spectrum of relationships, sexual and otherwise, that people have — is based on governments’ interest in stabilizing those relationships that can generate children. From the fact that our governments and our culture have shown decreasing interest in this task it does not follow that the task should be formally abandoned.
We recognize, of course, that there are sincere and well-meaning people — nowadays, across the political spectrum — who hold a very different conception of marriage. They think of marriage as an enduring emotional commitment with a sexual element. They believe that governments should single out all such relationships for recognition. We cannot see any good purpose for doing this. More to the point in regards to the administration’s brief, we are quite certain that the Constitution does not plump for one view of marriage over the other.
The administration claims that Proposition 8 imposes a classification based on sexual orientation, and that such classifications should be subject to “heightened scrutiny.” But the brief does not demonstrate that the classification is in fact based on sexual orientation, rather than on the traditional conception of marriage as an institution oriented toward procreation. Marriage laws based on this conception no more discriminate against same-sex relationships than they discriminate against every type of relationship other than marriage. It is not as though nearly every society in history adopted the view of marriage we defend in order to harm gays and lesbians.
And of course there is no suggestion in the Constitution — not the barest wisp of one — that this conception of marriage is impermissible. The country did not mandate recognition of same-sex marriage by every state in the union when it ratified the 14th Amendment in 1868, and not even the Obama administration thought it did until Thursday.