Transformation: Obama tells mag Constitution requires all states to allow same-sex marriage

Jeffrey Toobin, New Yorker

To the extent that there is an Obama legal legacy, it centers on gay rights and voting rights, subjects that the President addresses more with caution than with passion. Obama served as president of the Harvard Law Review (Class of 1991), and taught at the University of Chicago law school for more than a decade. He was never exactly a legal academic; he didn’t write law-review articles or seek a tenure-track job. He taught classes once a week while practicing law and, later, while serving in the Illinois state senate, in Springfield. When it comes to the law, Obama may never have been a full professor, but he remains fully professorial.

SupremeJusticeObamaI asked him to name the best Supreme Court decision of his tenure. When the Court upheld the constitutionality of the Affordable Care Act, in 2012? When it struck down the Defense of Marriage Act, a year later? Neither, it turned out.

“In some ways, the decision that was just handed down to not do anything about what states are doing on same-sex marriage may end up being as consequential—from my perspective, a positive sense—as anything that’s been done,” the President said. “Because I think it really signals that although the Court was not quite ready — it didn’t have sufficient votes to follow Loving v. Virginia and go ahead and indicate an equal-protection right across the board—it was a consequential and powerful signal of the changes that have taken place in society and that the law is having to catch up.” In the Loving decision, from 1967, the Court held that states could no longer ban racial intermarriage. …

On same-sex marriage, the Supreme Court had hit a single, or maybe a double, and that was fine with him. Obama opposed marriage equality until May of 2012. He told me that he now believes the Constitution requires all states to allow same-sex marriage, an argument that his Administration has not yet made before the Supreme Court. “Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” he said.


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