President Obama's view on marriage has changed throughout his political career. It seems that in 1996, he supported same-sex marriage, but then changed that view when he ran for national office in 2006. He has always supported civil unions and opposed section three of the Defense of Marriage Act (DOMA) that prevents the recognition of some same-sex couple benefits, such as sponsorship of foreign born partners for citizenship. His view on the idea of marriage has evolved since taking office and President Obama has now confirmed that he supports gay marriage.
In 1996, the campaign of Barack Obama for State Senate filled out a questionnaire for teh Windy City Media group indicating that he wouls support a state resolution in support of gay marriage. That same year, he responded to an outline questionnaire by stating that he supported gay marriage and would fight efforts to prohibit it. In June of 2011, a member of the Obama administration claimed that these surveys were filled out by a staff member and were not the views of Barack Obama. The owner of the magazine that published the questionnaire quickly rebutted that assertion and the press secretary did eventually confirm that Barack Obama did fill out the questionnaire supporting gay marriage, but that he did now support the traditional definition of marriage.
In 2004, Barack Obama stated in a US Senate campaign debate with Alan Keyes that marriage is between one man and one woman, and that he supports civil unions but not gay marriage. He stated that his religion dictated that marriage was defined this way and that when a man and a woman are married, they are performing something before God. He also stated that this position does not translate into public policy. He continued by asserting that homosexuality is innate and is not a choice, and that marriage is not a civil right but a tradition that needed to be preserved.
In June of 2006, Senator Obama stated on the Senate floor that marriage was between one man and one woman. He spoke during the debate over a constitutional amendment on marriage and asserted his support for marriage as one man and one woman and his view that debating the issue was merely a distraction from the real issues.
These views on marriage, civil unions, and religion were continually reaffirmed throughout the 2008 campaign. In an interview with Pastor Rick Warren, Senator Obama defined marriage as between one man and one woman and noted that it was also a sacred union in which God was a factor. He then stated that he would not support an amendment to the constitution to define marriage as this is not something left to the constitution to define. He states that the matter of marriage is left to the States.
In additional interviews with the Christian Broadcast Network (CBN) and Logo TV, Senator Obama stated that he supported traditional marriage, that he supported civil unions, and that he supported equal rights in terms of hospital visitation, property rights, and other areas for gay and lesbian couples. Senator Obama's official 2008 website statements echoed the statements endorsing equal rights in those areas for LGBT couples. Those statements also asserted Senator Obama's position that the Defense of Marriage Act should be repealed and that he opposed a constitutional amendment to define marriage. While a Senator, Barack Obama voted against a measure to amend the constitution to define marriage.
In June of 2009, President Obama issued an Presidential Memorandu, declaring that where legal, the same rights given to federal workers with respect to married couples will be extended to same sex couples.
In October of 2009, President Obama spoke at a Human Rights Campaign national dinner. In that speech, he compares the issues of gay marriage and rights to those faced by African Americans during the civil rights struggles. He makes the assertion that though progress has been slow, the LGBT community should be assured of the destination. He then begins to discuss the need to repeal don't ask, don't tell. This was the first instance in which the President retreated from previous statements and classified marriage with civil rights. It was also ambiguous in terms of defining that goal as either the repeal of DADT or something more.
Later that year, President Obama was interviewed by Anderson Cooper and asked about the possible repeal of DADT. When pressed on the issue, President Obama noted that he simply could not make law, and that this was a rule that Congress established and Congress must repeal. It was not an option of the President to simply ignore the law.
In April of 2010, President Obama issued a second Presidentila Memorandum declaring that any hospital that received federal funds through Medicare or Medicaid must allow visitation rights for same-sex couples.
In October of 2010, the President was speaking to a group of bloggers and stated that his views on the issue of marriage was evolving. He stated that his children had friends who had same-sex parents and that there were workers on his staff that were in committed same-sex relationships.
On February 23 of the 2011 the White House and the Justice Department announced that they would not be defending the DOMA in new cases. The rationality was that previous cases were addressed in courts with established precedents in which the ability to exclude or establish marriage based on sexual preference was settled. The new cases were brought in district courts which had no precedent and the Justice Department could not defend that law without those precedents. AG Eric Holder asserted that he agreed with the stated position of President Obama that the DOMA was unconstitutional. In a subsequent interview with bloggers, President Obama asserted that the decision on DOMA would not take years to address as the court cases were already in progress.
Some time prior to July of 2011, the White House web site was updated to state that President Obama supported the Respect for Marriage Act. Those statements assert that the act would ensure that the federal government could not deny rights to same-sex couples. However, the text of the legislation indicates that it would force a marriage recognized in one state to be recognized in all states, essentially making gay marriage legal.
In early 2012, there was a growing number of high ranking Obama administration officials that came out in support of gay marriage. This included the Secretary of Education and the Vice President. Within days of Vice-President Biden's statements in support of gay marriage, President Obama granted an interview and came out in support of gay marriage.
In doint this, President Obama invoked the "golden rule" in christianity and asserted that he was seeking to treat all Americans as he would like to be treated. The following day, the issue of marriage was addressed on the "civil rights" page of the White House, meaning that the President now viewed the issue as a civil right.
Windy City Media Group Questionnaire
In January of 1996, Barack Obama responded to a questionnaire by the Windy City Media group regarding rights for the LGBT community and marriage. In that questionnaire, Barack Obama is asked whether he would support a state resolution supporting marriage and whether because marriage is a fundamental human right.
7. Do you endorse the Marriage Resolution, a statements of support for the right of same gender individuals to marry:
Because marriage is a basic human right and an individual personal choice,
RESOLVED, the state should not interfere with same-gender couples who chose to marry and share fully and equally in the rights, responsibilities and committment of civil marriage.
If you do not support the resolution, will you at least oppose any attemtps to outlaw same-gender marriage and/or amend reciprocity agreements with states which permit same-gender marriage? WIll you oppose any federal initiatives which attempt to over-ride certain state laws which allow same-gender marriage?
Barack Obama: I would support such a resolution.
Outlines Magazine
In 1996, Barack Obama responded to the LGBT magazine Outlines and asserts his support for same sex marriage and states that he would fight efforts to prohibit it.
6. I favor legalizing same-sex marriages, and would fight effort to prohibit such marriages.
US Senate Debate
In 2004, Barack Obama participated in a debate with Alan Keyes and was asked about his positions on gay marriage and homosexuality. He states that marriage is between one man and one woman, and that he supports civil unions but not gay marriage. He states that when a man and a woman are married, they are performing something before God, but that this does not translate into a position on public policy. He stated that marriage was a position that needed to be preserved, but that gays and lesbians had the same rights. He states that homosexuality is innate and is not a choice, but that marriage is not a civil right.
Moderator: You have said that your religious faith ... your religious faith dictates that marriage should be between a man and a woman. Would you elaborate on that?
Barack Obama: Well, I ... what I belief is that marriage is between a man and a woman. But what I also believe is that we have an obligation to make sure that gays and lesbians have the rights of citizenship that afford them visitation to hospitals, that allow them to transfer property between partners, to make sure that they are not discriminated on the job ... I think that fundamental rights are absolutely critical.
Moderartor (interupting): Excuse me by why? What in your religious faith calls you to be against gay marriage?
Barack Obama:What I believe, in my faith, is that a man and a woman, when they get married are performing something before God and it's not something that is between the two persons who are meeting. But that doesn't mean that that necessarily translates into a position on public policy or with respect to civil unions. What it does mean is that we have a set of traditions in place that need to be perserved, but it also means that we need to make sure that gays and lesbians have the same set of basic rights that are in place. And I was glad to see for example, that the President stated that he was in favor of civil unions. This may be a reversal of his position, but I think that it is a healthy one. I think that President Bush and I disagree apparently with Mr Keyes on this because I think that that kind of basic ethic of regard towards all people regardless of sexual orientation is a valuable thing.
Moderator: Let me just get a very quick folow up question ... Do you believe that homosexuality is a choice?
Barack Obama: No, I don't
Moderator: You think that it's innate?
Barack Obama: For the most part, I think that it is innate. It may vary in some circumstances, but for the most part, it is something that is a part of their identity.
Moderator: That being the case Mr Obama, that being the case, if something is not a choice, if it is innate, then why isn't it a civil right and why isn't your support for civil unions ... does that amount to separate but equal?
Barack Obama: I think that a whole host of things that are civil rights, and then there are other things such as traditional marriage that I think express a communities concern with regard for a particular institution.
Modearator: So marriage is not a civil right as far as you're concerned?
Barack Obama: I don't think that marraige is a civil right, but I think that being able to transfer property is a civil right.
Moderator: Do you think that it is a human right?
Barack Obama: I think that not being discriminated against is a civil right. I think that making sure that we don't engage in the sort of gay bashing that has unfortunately dominated this campaign not just here in Illinois, but across the country is unfortunate. I think that that kind of mean-spirited attack on homosexuals is something that the people of Illinois have rejected.
Marriage Amendment Floor Statements
While debating an amendment to define marriage as between one man and one woman, Senator Obama spoke on the Senate floor and stated his views that marriage was indeed one man and one woman, but that the debate over the amendment was pointless as it had no chance of passing. He also asserted that the effort was nothing more than a diversion from real issues of the day.
Mr. OBAMA. Mr. President, today, we take up the valuable time of the Senate with a proposed amendment to our Constitution that has absolutely no chance of passing.
We do this, allegedly, in an attempt to uphold the institution of marriage in this country. We do this despite the fact that for over 200 years, Americans have been defining and defending marriage on the State and local level without any help from the U.S. Constitution at all.
And yet, we are here anyway because it is an election year--because the party in power has decided that the best way to get voters to the polls is not by talking about Iraq or health care or energy or education but about a constitutional ban on same-sex marriage that they have no chance of passing.
Now, I realize that for some Americans, this is an important issue. And I should say that, personally, I do believe that marriage is between a man and a woman.
But let's be honest. That is not what this debate is about. Not at this time.
This debate is an attempt to break a consensus that is quietly being forged in this country. It is a consensus between Democrats and Republicans, liberals and conservatives, red States and blue States, that it is time for new leadership in this country--leadership that will stop dividing us, stop disappointing us, and start addressing the problems facing most Americans.
It is a consensus between a majority of Americans who say: You know what, maybe some of us are comfortable with gay marriage right now and some of us are not. But most of us do believe that gay couples should be able to visit each other in the hospital and share health care benefits; most of us do believe that they should be treated with dignity and have their privacy respected by the federal government.
We all know that if this amendment were to pass, it would close the door on much of this--because we know that when similar amendments passed in places such as Ohio and Michigan and Utah, domestic partnership benefits were taken away from gay couples.
This is not what the majority of the American people want. And this is not about trying to build consensus in this country; it is not about trying to bring people together.
This is about winning an election. That is why the issue was last raised in July of 2004, and that is why we haven't heard about it again until now. And while this is supposedly a measure that the other party raised to appeal to some of its core supporters, I don't know how happy I would be if my party only talked about an issue I cared about right around election time--especially if they knew it had no chance of passing.
I agree with most Americans, with Democrats and Republicans, with Vice President Cheney, with over 2,000 religious leaders of all different beliefs, that decisions about marriage , as they always have, should be left to the States.
Today, we should take this amendment only for what it is--a political ploy designed to rally a few supporters and draw the country's attention away from this leadership's past failures and America's future challenges.
There is plenty of work to be done in this country. There are millions without health care and skyrocketing gas prices and children in crumbling schools and thousands of young Americans risking their lives in Iraq.
So don't tell me that this is the best use of our time. Don't tell me that this is what people want to see talked about on TV and in the newspapers all day. We wonder why the American people have such a low opinion of Washington these days. This is why.
We are better than this, and we certainly owe the American people more than this. I know that this amendment will fail, and when it does, I hope we can start discussing issues and offering proposals that will actually improve the lives of most Americans.
CBN Interview
As part of the 2008 election cycle, Senator Obama was asked about his views on gay marriage. He stated that he had no intention of granting them special rights, but only the same rights as married couples, such as hospital visitation and hereditary property rights.
On the issue of gay marriage, my belief is that as a public official, my role is to make sure that everybody is treated fairly and everybody has equal rights. I know that sometimes in this debate, there's talk about "Well, we don't mind giving gays and lesbians equal rights, just not special rights."
The fact is, that many gay couples right now for example, can't visit each other in the hospital. When I sit down and read scripture and I think "How would Jesus feel about somebody not being able to visit someone that they loved when they are sick." I conclude that that is something that is important. Certainly as a public official, it is important to me to make sure that those basic rights that that basic equality is available.
So, again on these issues I think that we can disagree respectfully, disagree without being disagreeable, but we have to remind ourselves of all the things that we agree on, which is that children should be cared for, that we should be promoting the safety and security of the United States, that we want to give economic opportunity to all people, and my hope is ... I understand that there are going to be some people that can't vote for me because of a couple of these positions. I just want them to know that these are issues that I don't take lightly, and I respect their positions.
Saddleback Church Interview
In an interview at the Sattleback Church with Pastor Rick Warren in 2008, Senator Obama was asked to define marriage and defined it as between one man and one woman. However, he stated that he would not support an amendment to define it as such.
Warren: Define marriage
Obama: I believe that marriage is a union between a man and a woman ... For me as a christian, it is also a sacred union ... God is in the mix.
Warren: Would you support a constitutional amendment with that definition
Obama: No I wouldn't... because historically, we have not defined marriage in our constitution. It has been a matter of state law. That has been our tradition. Now, let's break it down. The reason that people think that there needs to be a constitutional amendment is because of the concern about same sex marriage. I am not somebody that promotes same sex marriage, but I do believe in civil unions. I do believe that we should not ... for gay partners to want to visit each other in the hospital, for the state to that that is all right, I don't think that in any way inhibits my core beliefs about what marriage is. I think that my faith is strong enough and my marriage is strong enough that I can afford those civil rights to others.
Logo TV - Human Rights Campaign
In an interview on Logo TV for the Human Rights Campaign in February of 2008, Senator Obama stated that he supported civil unions, but that marriage was something that shoul dbe decided by religious institutions.
I would have supported and would to continue to support a civil union that provides all the benefits that are available for a legally sanctioned marriage. It is then up to religious denominations to make a determination as to whether they want to recognize that as marriage or not.
2008 Campaign Website Statements
The Obama-Biden Plan
...
Support Full Civil Unions and Federal Rights for LGBT Couples:
Barack Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.
Oppose a Constitutional Ban on Same-Sex Marriage:
Barack Obama voted against the Federal Marriage Amendment in 2006 which would have defined marriage as between a man and a woman and prevented judicial extension of marriage-like rights to same-sex or other unmarried couples.
Executive Order - Government Workers
On June 17, 2009 President Obama issued a Presidential Memorandum ordering a review on government worker benefits and stating the policy that government benefits would be extended to same-sex couples.
THE WHITE HOUSE
Office of the Press Secretary _____________________________________________________________________ For Immediate Release June 17, 2009
June 17, 2009 MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
SUBJECT: Federal Benefits and Non-Discrimination
Millions of hard-working, dedicated, and patriotic public servants are employed by the Federal Government as part of the civilian workforce, and many of these devoted Americans have same-sex domestic partners. Leading companies in the private sector are free to provide to same-sex domestic partners the same benefits they provide to married people of the opposite sex. Executive departments and agencies, however, may only provide benefits on that basis if they have legal authorization to do so. My Administration is not authorized by Federal law to extend a number of available Federal benefits to the same-sex partners of Federal employees. Within existing law, however, my Administration, in consultation with the Secretary of State, who oversees our Foreign Service employees, and the Director of the Office of Personnel Management, who oversees human resource management for our civil service employees, has identified areas in which statutory authority exists to achieve greater equality for the Federal workforce through extension to same-sex domestic partners of benefits currently available to married people of the opposite sex. Extending available benefits will help the Federal Government compete with the private sector to recruit and retain the best and the brightest employees.
I hereby request the following:
Section 1. Extension of Identified Benefits. The Secretary of State and the Director of the Office of Personnel Management shall, in consultation with the Department of Justice, extend the benefits they have respectively identified to qualified same-sex domestic partners of Federal employees where doing so can be achieved and is consistent with Federal law.
Sec. 2. Review of Governmentwide Benefits. The heads of all other executive departments and agencies, in consultation with the Office of Personnel Management, shall conduct a review of the benefits provided by their respective departments and agencies to determine what authority they have to extend such benefits to same-sex domestic partners of Federal employees. The results of this review shall be reported within 90 days to the Director of the Office of Personnel Management, who, in consultation with the Department of Justice, shall recommend to me any additional measures that can be taken, consistent with existing law, to provide benefits to the same-sex domestic partners of Federal Government employees.
...
Human Rights Campaign National Dinner
At a speech to the Human Rights campaign in October of 2009, President Obama compared the movement to define marriage to include two people of the same sex to the civil rights struggles of African Americans. He stated that the US was moving forward on ending don't ask, don't tell and made the commitment to do so. This was the first time that President Obama made statements on the issue of marriage that called his position on the matter into question. He stated that although progress was slow, the LGBT community should not doubt where the administration was going and that the administration was moving forward on ending don't ask, don't tell.
I greatly appreciate the support that I have received from many in this room. I also appreciate that many of you don't believe that progress has come fast enough. I want to be honest about that, because it's important to be honest among friends.
Now, I've said this before and I'll repeat it again. It's not for me to tell you to be patient any more than it was for those to council patience to African Americans petitioning for equal rights half a century ago. But I will say this, we have made progress, and we will make more ...
... So I know that you want me working on jobs and the economy and all the other issues that we are dealing with but my commitment to you is unwavering even as we wrestle with these enormous problems. And while progress may be taking longer than you'd like, as a result of all that we face, and that's the truth, do not doubt the direction we are heading nor the destination we will reach. ...
... We are moving ahead on don't ask, don't tell. We should not be punishing patriotic Americans who have stepped forward to serve this country, we should be celebrating their willingness to show such courage and selflessness on behalf of their fellow citizens especially when we're fighting two wars.
We cannot afford to cut from our ranks, people with the critical skill that we need to fight, any more that we can afford for our military's integrity to force those willing to do so to force those incumbered and compromised by having to live a lie. So I'm working with the Pentagon, it's leadership, the House and Senate on ending this policy. Legislation has been introduced in the House to make this happen. I will end don't ask, don't tell, that is my commitment to you.
CNN Interview with Anderson Cooper
In an interview with CNN's Anderson Cooper, President Obama again spoke about ending the policy of don't ask, don't tell and about possible non-enforcement of the policy. He notes that as President, he simply cannot make policy, but that he must wait for Congress to end the policy.
Anderson Cooper: One more question before we go to Africa, don't ask, don't tell. It requires an act of congress to overturn it. You've said that you wanted it overturned, but your critics and even some of your supporters say look, you could stop enforcement right now of don't ask, don't tell. You could defer enforcement until you pry congress to act.
President Obama: Look, I've had conversations with Bob Gates, as well as Admiral Mullens, about the fact that I want to see this law changed. I also want to make sure that A, we are not simply ignoring a congressional law. If Congress passes a law that is constitutionally valid, then it is not appropriate for the executive branch to say "We will not enforce a law." It is our duty to enforce laws. I do think that there's the possibility though that we change how the law is being enforced even as we pursue a shift in congressional policy. But look, the bottom line is that, I wanna see this changed, and we've already contacted congressional allies. I wanna make sure that it is changed in a way that ultimately works for our military, and for the outstanding gay and lesbian soldiers that are both currently enlisted or would like to enlist.
AC: Do you personally have a timetable in mind of when you would like to see it changed?
President Obama: I'd like to see it done sooner rather than later, and we've begun a process not only to work it through congress, but also to make sure that the Pentagon has thought through all the ramifications of how this would be most effective.
Office of the Press Secretary For Immediate Release April 15, 2010 Presidential Memorandum - Hospital Visitation
MEMORANDUM FOR THE SECRETARY OF HEALTH AND HUMAN SERVICES
SUBJECT: Respecting the Rights of Hospital Patients to Receive Visitors and to Designate Surrogate Decision Makers for Medical Emergencies
There are few moments in our lives that call for greater compassion and companionship than when a loved one is admitted to the hospital. In these hours of need and moments of pain and anxiety, all of us would hope to have a hand to hold, a shoulder on which to lean -- a loved one to be there for us, as we would be there for them.
Yet every day, all across America, patients are denied the kindnesses and caring of a loved one at their sides -- whether in a sudden medical emergency or a prolonged hospital stay. Often, a widow or widower with no children is denied the support and comfort of a good friend. Members of religious orders are sometimes unable to choose someone other than an immediate family member to visit them and make medical decisions on their behalf. Also uniquely affected are gay and lesbian Americans who are often barred from the bedsides of the partners with whom they may have spent decades of their lives -- unable to be there for the person they love, and unable to act as a legal surrogate if their partner is incapacitated.
For all of these Americans, the failure to have their wishes respected concerning who may visit them or make medical decisions on their behalf has real onsequences. It means that doctors and nurses do not always have the best information about patients' medications and medical histories and that friends and certain family members are unable to serve as intermediaries to help communicate patients' needs. It means that a stressful and at times terrifying experience for patients is senselessly compounded by indignity and unfairness. And it means that all too often, people are made to suffer or even to pass away alone, denied the comfort of companionship in their final moments while a loved one is left worrying and pacing down the hall.
Many States have taken steps to try to put an end to these problems. North Carolina recently amended its Patients' Bill of Rights to give each patient "the right to designate visitors who shall receive the same visitation privileges as the patient's immediate family members, regardless of whether the visitors are legally related to the patient" -- a right that applies in every hospital in the State. Delaware, Nebraska, and Minnesota have adopted similar laws.
My Administration can expand on these important steps to ensure that patients can receive compassionate care and equal treatment during their hospital stays. By this memorandum, I request that you take the following steps:
1. Initiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy. You should also provide that participating hospitals may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability. The rulemaking should take into account the need for hospitals to restrict visitation in medically appropriate circumstances as well as the clinical decisions that medical professionals make about a patient's care or treatment.
2. Ensure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102(a), promulgated to guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients' representatives otherwise have the right to make informed decisions regarding patients' care. Additionally, I request that you issue new guidelines, pursuant to your authority under 42 U.S.C. 1395cc and other relevant provisions of law, and provide technical assistance on how hospitals participating in Medicare or Medicaid can best comply with the regulations and take any additional appropriate measures to fully enforce the regulations.
3. Provide additional recommendations to me, within 180 days of the date of this memorandum, on actions the Department of Health and Human Services can take to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
You are hereby authorized and directed to publish this memorandum in the Federal Register.
BARACK OBAMA
Blogger Interview - Evolving Positions
In October of 2010, President Obama was speaking to a group of bloggers and was asked about his position and possible actions on hte subject of marriage. He states here for the first time that his views on the matter were "evolving" and seemed to indicate that gay marriage was inevitable.
I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage. But I also think you’re right that attitudes evolve, including mine.
I think that it is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents. And I care about them deeply. And so while I’m not prepared to reverse myself here, sitting in the Roosevelt Room at 3:30 in the afternoon, I think it’s fair to say that it’s something that I think a lot about. That’s probably the best you’ll do out of me today.
...
The one thing I will say today is I think it’s pretty clear where the trend lines are going.
Legal Defense of DOMA
On February 23, 2011 President Obama and the Justice Department announced that it would no longer be defending the Defense of Marriage Act in ongoing cases in which section three of DOMA was challenged. In a press release from the Justice Department announcing the decision, AG Holder states that up until this point the court cases involving DOMA were held in courts with established precedence in which it was reasonable for laws to exist that singled out people based on sexual orientation. In the cases in question, no such precedent exists in those courts and the Obama administration beliefs that without the established rulings, the law cannot be defended.
That same day, AG Holder sent a letter to House Speaker John Boehner making him aware of the decision and going into more detail about the case, the Justice Department's previous actions, and their actions in this case.
Department of Justice Office of Public Affairs
FOR IMMEDIATE RELEASE Wednesday, February 23, 2011 Statement of the Attorney General on Litigation Involving the Defense of Marriage Act
WASHINGTON – The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:
In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.
Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.
Consequently, the Department will not defend the constitutionality of Section 3 of DOMA as applied to same-sex married couples in the two cases filed in the Second Circuit. We will, however, remain parties to the cases and continue to represent the interests of the United States throughout the litigation. I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.
Furthermore, pursuant to the President ’ s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
The Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense. At the same time, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because – as here – the Department does not consider every such argument to be a “reasonable” one. Moreover, the Department has declined to defend a statute in cases, like this one, where the President has concluded that the statute is unconstitutional.
Much of the legal landscape has changed in the 15 years since Congress passed DOMA. The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional. Congress has repealed the military’s Don’t Ask, Don’t Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional. Section 3 of DOMA will continue to remain in effect unless Congress repeals it or there is a final judicial finding that strikes it down, and the President has informed me that the Executive Branch will continue to enforce the law. But while both the wisdom and the legality of Section 3 of DOMA will continue to be the subject of both extensive litigation and public debate, this Administration will no longer assert its constitutionality in court.
Department of Justice Office of Public Affairs FOR IMMEDIATE RELEASE Wednesday, February 23, 2011 Letter from the Attorney General to Congress on Litigation Involving the Defense of Marriage Act
WASHINGTON – The Attorney General sent the following letter today to Congressional leadership to inform them of the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman. A copy of the letter is also attached.
The Honorable John A. Boehner Speaker U.S. House of Representatives Washington, DC 20515
Re: Defense of Marriage Act
Dear Mr. Speaker:
After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, i as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment. Pursuant to 28 U.S.C. § 530D, I am writing to advise you of the Executive Branch’s determination and to inform you of the steps the Department will take in two pending DOMA cases to implement that determination.
While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.ii
These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.
Standard of Review
The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985).
Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation. First and most importantly, there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities, based on prejudice and stereotypes that continue to have ramifications today. Indeed, until very recently, states have “demean[ed] the[] existence” of gays and lesbians “by making their private sexual conduct a crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003).iii
Second, while sexual orientation carries no visible badge, a growing scientific consensus accepts that sexual orientation is a characteristic that is immutable, see Richard A. Posner, Sex and Reason 101 (1992); it is undoubtedly unfair to require sexual orientation to be hidden from view to avoid discrimination, see Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321, 124 Stat. 3515 (2010).
Third, the adoption of laws like those at issue in Romer v. Evans, 517 U.S. 620 (1996), and Lawrence, the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and “ability to attract the [favorable] attention of the lawmakers.” Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don’t Ask, Don’t Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged “political powerlessness.” Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).
Finally, there is a growing acknowledgment that sexual orientation “bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality). Recent evolutions in legislation (including the pending repeal of Don’t Ask, Don’t Tell), in community practices and attitudes, in case law (including the Supreme Court’s holdings in Lawrence and Romer), and in social science regarding sexual orientation all make clear that sexual orientation is not a characteristic that generally bears on legitimate policy objectives. See, e.g., Statement by the President on the Don’t Ask, Don’t Tell Repeal Act of 2010 (“It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed.”)
To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications. We have carefully examined each of those decisions. Many of them reason only that if consensual same-sex sodomy may be criminalized under Bowers v. Hardwick, then it follows that no heightened review is appropriate – a line of reasoning that does not survive the overruling of Bowers in Lawrence v. Texas, 538 U.S. 558 (2003).iv Others rely on claims regarding “procreational responsibility” that the Department has disavowed already in litigation as unreasonable, or claims regarding the immutability of sexual orientation that we do not believe can be reconciled with more recent social science understandings.v And none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny. Finally, many of the more recent decisions have relied on the fact that the Supreme Court has not recognized that gays and lesbians constitute a suspect class or the fact that the Court has applied rational basis review in its most recent decisions addressing classifications based on sexual orientation, Lawrence and Romer.vi But neither of those decisions reached, let alone resolved, the level of scrutiny issue because in both the Court concluded that the laws could not even survive the more deferential rational basis standard.
Application to Section 3 of DOMA
In reviewing a legislative classification under heightened scrutiny, the government must establish that the classification is “substantially related to an important government objective.” Clark v. Jeter, 486 U.S. 456, 461 (1988). Under heightened scrutiny, “a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533.
In other words, under heightened scrutiny, the United States cannot defend Section 3 by advancing hypothetical rationales, independent of the legislative record, as it has done in circuits where precedent mandates application of rational basis review. Instead, the United States can defend Section 3 only by invoking Congress’ actual justifications for the law.
Moreover, the legislative record underlying DOMA’s passage contains discussion and debate that undermines any defense under heightened scrutiny. The record contains numerous expressions reflecting moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.vii See Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear” are not permissible bases for discriminatory treatment); see also Romer, 517 U.S. at 635 (rejecting rationale that law was supported by “the liberties of landlords or employers who have personal or religious objections to homosexuality”); Palmore v. Sidotti, 466 U.S. 429, 433 (1984) (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”).
Application to Second Circuit Cases
After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen, now pending in the Southern District of New York and the District of Connecticut. I concur in this determination.
Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch. To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.
As you know, the Department has a longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense, a practice that accords the respect appropriately due to a coequal branch of government. However, the Department in the past has declined to defend statutes despite the availability of professionally responsible arguments, in part because the Department does not consider every plausible argument to be a “reasonable” one. “[D]ifferent cases can raise very different issues with respect to statutes of doubtful constitutional validity,” and thus there are “a variety of factors that bear on whether the Department will defend the constitutionality of a statute.” Letter to Hon. Orrin G. Hatch from Assistant Attorney General Andrew Fois at 7 (Mar. 22, 1996). This is the rare case where the proper course is to forgo the defense of this statute. Moreover, the Department has declined to defend a statute “in cases in which it is manifest that the President has concluded that the statute is unconstitutional,” as is the case here. Seth P. Waxman, Defending Congress, 79 N.C. L.Rev. 1073, 1083 (2001).
In light of the foregoing, I will instruct the Department’s lawyers to immediately inform the district courts in Windsor and Pedersen of the Executive Branch’s view that heightened scrutiny is the appropriate standard of review and that, consistent with that standard, Section 3 of DOMA may not be constitutionally applied to same-sex couples whose marriages are legally recognized under state law. If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3’s constitutionality may be proffered under that permissive standard. Our attorneys will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases. We will remain parties to the case and continue to represent the interests of the United States throughout the litigation.
Furthermore, pursuant to the President’s instructions, and upon further notification to Congress, I will instruct Department attorneys to advise courts in other pending DOMA litigation of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.
A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011. Please do not hesitate to contact us if you have any questions.
Sincerely yours,
Eric H. Holder, Jr. Attorney General
Questions about 1996 Survey
On June 17, 2011 White House Communications Director Dan Pfeiffer was interviewed at the Netroots Nation blogger conference and was asked about the 1996 surveys that Barack Obama responded to when running for the State Senate. Mr Pfeiffer states that the surveys were actually filled out by a staff member and not Barack Obama.
If you actually go back and look, that questionnaire was actually filled out by someone else, not the President. There was a long debate about this in the campaign. ... This was litigated in the campaign
The founder of Outlines Magazine and publisher of the Windy City Times, was asked about this possibility and stood by then-state senate candidate Obama's response. He also noted that this is the first time in the 15 years since its publication that the questionnaire's authenticity has been doubted:
It was faxed from the law firm Obama worked for at the time. And it was reported in Outlines newspaper that he backed gay marriage, something his campaign never denied in 1996. He would have had a very small campaign staff, so it was unlikely he had someone else complete the form. In fact he went to the trouble of typing full answers when the form was actually able to be completed as a Q&A. Even if someone else completed the form, Obama signed it, and never denied subsequent reports of its content.
Days later, Press Secretary Jay Carney was asked about the questionnaire by the press corps. His response is that Mr Pfeiffer was referring to another questionnaire. He does not comment on which questionnaires were and were not filled out by Mr Obama.
Repeal of DADT
On September 20, 2011 the White House issued a statement noting the repeal of DADT was now formally in place. The President signed the legislation at the end of the previous year.
The White House
Office of the Press Secretary For Immediate Release September 20, 2011 Statement by the President on the Repeal of Don't Ask, Don't Tell
Today, the discriminatory law known as ‘Don’t Ask, Don’t Tell’ is finally and formally repealed. As of today, patriotic Americans in uniform will no longer have to lie about who they are in order to serve the country they love. As of today, our armed forces will no longer lose the extraordinary skills and combat experience of so many gay and lesbian service members. And today, as Commander in Chief, I want those who were discharged under this law to know that your country deeply values your service.
I was proud to sign the Repeal Act into law last December because I knew that it would enhance our national security, increase our military readiness, and bring us closer to the principles of equality and fairness that define us as Americans. Today’s achievement is a tribute to all the patriots who fought and marched for change; to Members of Congress, from both parties, who voted for repeal; to our civilian and military leaders who ensured a smooth transition; and to the professionalism of our men and women in uniform who showed that they were ready to move forward together, as one team, to meet the missions we ask of them.
For more than two centuries, we have worked to extend America’s promise to all our citizens. Our armed forces have been both a mirror and a catalyst of that progress, and our troops, including gays and lesbians, have given their lives to defend the freedoms and liberties that we cherish as Americans. Today, every American can be proud that we have taken another great step toward keeping our military the finest in the world and toward fulfilling our nation’s founding ideals.
DOMA will not take years
In September of 2011, President Obama was interviewed by bloggers and press personel regarding a number of issues. He was asked about DOMA and the ability of gay and lesbian couples to sponsor foreign born partners for citizenship. The President reiterates that he does not suppport DOMA and that he wants to see it repealed. The President then stated that given that there are already cases in court to address section three of DOMA, the decision on it's legality would not take long to decide.
Respect for Marriage Act
In July of 2011, a page of WhiteHouse.gov stated that President Obama supported the Respect for Marriage Act. This legislation would remove the Defense of Marriage Act and force one state to recognize a legal marriage in another state.
President Obama Supports the Respect for Marriage Act Colleen Curtis July 19, 2011 06:43 PM EDT
President Obama is proud to support the Respect for Marriage Act, which has been introduced by Senator Dianne Feinstein and Congressman Jerrold Nadler. This legislation would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as straight couples.
The President has long called for a legislative repeal of the so-called Defense of Marriage Act (DOMA), which continues to have a real impact on the lives of real people -- our families, friends and neighbors.
Vice President Biden's Support
On May 6, 2012 Vice-President Obama appeared on Meet the Press and discussed the issue of marriage, along with a number of other issues. The Vice-President asserted that he is comfortable with the idea of gay marriage and that the issue was evolving. He noted that the law follows culture and that people's opinion on the issue was changing.
Support for Gay Marriage
On May 9, 2012 President Obama granted an interview to ABC News and discussed the issue of marriage. In that interview, he confirmed that his view had evolved and that he now supported gay marriage. He also discussed the religious implications of marriage and stated that in his view, Jesus taught to treat others as we would like to be treated and that this tenet of christianity was one of the foundations of this position.
I have to tell you that over the course of several years as I have talked to friends and family and neighbors, when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together; when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that 'don't ask, don't tell' is gone, because they are not able to commit themselves in a marriage, at a certain point I've just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.
...
It's interesting, some of this is also generational. You know when I go to college campuses, sometimes I talk to college Republicans who think that I have terrible policies on the economy, on foreign policy, but are very clear that when it comes to same-sex equality or, you know, sexual orientation, that they believe in equality. They are much more comfortable with it. You know, Malia and Sasha, they have friends whose parents are same-sex couples. There have been times where Michelle and I have been sitting around the dinner table and we're talking about their friends and their parents and Malia and Sasha, it wouldn't dawn on them that somehow their friends' parents would be treated differently. It doesn't make sense to them and, frankly, that's the kind of thing that prompts a change in perspective.
...
This is something that, you know, we've talked about over the years and she, you know, she feels the same way, she feels the same way that I do. And that is that, in the end the values that I care most deeply about and she cares most deeply about is how we treat other people and, you know, I, you know, we are both practicing Christians and obviously this position may be considered to put us at odds with the views of others but, you know, when we think about our faith, the thing at root that we think about is, not only Christ sacrificing himself on our behalf, but it's also the Golden Rule, you know, treat others the way you would want to be treated. And I think that's what we try to impart to our kids and that's what motivates me as president and I figure the most consistent I can be in being true to those precepts, the better I'll be as a as a dad and a husband and, hopefully, the better I'll be as president.
Voting Record
2006 Constitutional Amendment
In 2006 the Senate voted on adding a constitutional amendment which defined marriage as a union between a man and a woman, and ensured to no state would be capable of conferring marital status on a union other than a man or a woman. Barack Obama voted against the 2006 amendment to define marriage as between one man and one woman.
Barack Obama voted against the 2006 amendment to define marriage as between one man and one woman.
Provides that a federal employee and his or her domestic partner shall be entitled to benefits available to, and shall be subject to obligations imposed upon, a married federal employee and his or her spouse.Defines "domestic partner" to mean an adult unmarried person living with another adult unmarried person of the same sex in a committed, intimate relationship. Defines "benefits" to include federal health insurance and enhanced dental and vision benefits, retirement and disability benefits, family, medical, and emergency leave, group life insurance, long-term care insurance, compensation for work injuries, and benefits for disability, death, or captivity. Excludes members of the uniformed services from the definition of "employee."Sets forth requirements for filing: (1) an affidavit of eligibility as such a domestic partner, which shall include a certification that the employee and the domestic partner are each other's sole domestic partners and intend to remain so indefinitely; and (2) a statement upon dissolution of such a domestic partnership.
