Law professor Sara R. Benson is an expert on sexual orientation and the law.
Photo courtesy of the College of Law
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Sara R. Benson, an expert on sexual orientation and the law, spoke with News Bureau business and law editor Phil Ciciora about the ramifications of President Obama's support for same-sex marriage.
Now that the president has publicly affirmed his support of same-sex marriage, what (if anything) happens next? Will there be a renewed push to pass the Respect for Marriage Act, which would repeal the 1996 Defense of Marriage Act?
On a national level, most of the same-sex marriage fight is taking place on the state level, and will largely continue on a state-by-state basis until the court cases that address the issue reach the Supreme Court. President Obama has already publicly stated that he will no longer enforce DOMA, but he has not necessarily encouraged any steps to repeal the law. So pushing for a repeal of DOMA would be a logical step toward recognition of same-sex marriage at the federal level. However, with so many state constitutional bans of same-sex marriage in place, a repeal would be largely symbolic at this point.
In supporting same-sex marriage, is the president acknowledging that legal civil unions are an insufficient solution to the problem?
Yes. Civil unions are, by definition, not marriage. They create a separate legal stratosphere for same-sex couples and, as such, have been challenged in the courts as violating equal protection. Just as separate but equal schools were held to be unconstitutional in Brown v. Board of Education in 1954, civil unions are not a valid substitute for marriage today. President Obama could have said that he supports civil unions, but he did not. By stating that he supports same-sex marriage in particular, he is noting that civil unions are no substitute for marriage.
Is this truly a watershed moment, akin to Lyndon B. Johnson publicly supporting civil rights in 1964, or pure political calculation with what has been happening recently in states like North Carolina, where voters approved a state constitutional amendment banning same-sex marriage?
This is the first time a president of the United States has publicly stated his support for same-sex marriage. Yes, it is a momentous occasion. Same-sex marriage is not universally popular, so his stance actually cuts against political strategizing, particularly with the looming elections. In fact, 31 states have enacted constitutional amendments banning same-sex marriage. President Obama's stance, then, may actually be politically unpopular. However, it is a moment when the president is making a strong statement to his citizens that he will not tolerate discrimination, and that is something to be celebrated.