PRESIDENTIAL CONSTITUTIONALISM AND MARRIAGE EQUALITY.

• Author: Eskridge, William N., Jr.

INTRODUCTION 1891 I. BARACK OBAMA: EVOLVING CANDIDATE AND HIS 1893 ADMINISTRATION II. MARRIAGE EQUALITY AND THE NEW ADMINISTRATION 1896 III. SMELTDOWN 2009: MARRIAGE CANNOT BE IGNORED 1898 IV. EQUAL CITIZENSHIP FOR LGBTQ+ AMERICANS 1902 A. Gender Identity and Sexual Orientation as Suspect 1902 Classifications? B. Administrative Recognition of Lesbian and Gay Unions 1905 C. Legislation Against LGBTQ+ Discrimination 1906 V. ATTORNEY GENERAL HOLDER'S LETTER OF FEB. 23, 2011 1908 VI. THE PRESIDENT COMES OUT FOR MARRIAGE EQUALITY 1912 VII. UNITED STATES V. WINDSOR 1917 VIII. OBERGEFELL V. HODGES 1919 IX. THE POWER AND LIMITS OF PRESIDENTIAL CONSTITUTIONALISM 1921 INTRODUCTION

Administrative constitutionalism, broadly understood, entails normative efforts by executive officials to apply the law in light of (1) its public-regarding purposes, liberally applied to advance the common good; (2) the Large "C" Constitution, as interpreted purposively by the executive officials; and (3) the nation's small "c" constitutional culture of historical, foundational commitments. (1) As Professor Sophia Lee has explained, the engines of administrative constitutionalism have normally been agencies and their officials. (2) But some of the greatest examples of administrative constitutionalism have been led by American Presidents and the White House and not by agency heads and administrators.

Presidential constitutionalism has a distinctive origin in the duties of the President laid out in the Constitution. First, the President has a specified duty to "take Care that the Laws be faithfully executed.... " (3) For super-statutes, congressional measures seeking to transform the status quo, the President's charge is to implement the statute in a manner that advances the big goals set forth in the law. Second, the President's oath of office commits her or him to "preserve, protect and defend the Constitution of the United States." (4) This entails the President's obligation to enforce constitutional values and limits, including limits on the President's authority. That obligation, in turn, requires the White House to deliberate about the meaning of the Constitution. Third, like other public officials, the President ought to act to "promote the general Welfare, and secure the Blessings of Liberty" for all citizens, goals laid out in the Constitution's Preamble. (5)

Even this general description of presidential constitutionalism suggests its complexity. Is the President bound by constitutional rulings from the Supreme Court with which she or he disagrees? Should the President vigorously apply super-statutes that she or he thinks misguided? How does the President gauge the "general Welfare" and balance competing "Liberty" interests? However these issues are resolved by different administrations, the concept of presidential constitutionalism is a powerful and pervasive one. The modern Presidency has expanded opportunities for Large "C" as well as small "c" constitutional leadership by the officeholder. The President and Vice President are the only officials elected by the entire country, and Presidents take their elections as popular mandates for big normative moves. As the head of a political party and armed with a veto authority, the President enjoys a great deal of legislative power. As the person who appoints federal judges, the President influences the judiciary as well. Not least important, everything the President says and does commands media attention and public comment. The bully pulpit of the office invites big policy and moral initiatives.

This article will consider a particularly powerful example of presidential constitutionalism: the Obama Administration's leadership on the issue of marriage equality for lesbian, gay, bisexual, transgender, queer, and similar (LGBTQ+) persons. Presidential constitutionalism was effective because the chief executive articulated a robust principle (equal citizenship for sexual and gender minorities), application of that principle to the marriage issue was deeply deliberative within the executive branch and invited involvement by the judicial and legislative branches, and the process allowed the electorate to express its views. The combination of a robust principle, institutional deliberation, and popular feedback created conditions for immediate and powerful entrenchment of new rights for sexual and gender minorities.

1. BARACK OBAMA: EVOLVING CANDIDATE AND HIS ADMINISTRATION

   A former professor of constitutional law, Senator Barack Obama was, like his opponent Senator Hillary Clinton, opposed to the Defense of Marriage Act of 1996 (DOMA), which excluded married same-sex couples from any federal law or rule relating to marriage or spousehood. (6) Starting with an HRC/LOGO-sponsored candidates' forum in August 2007, Senator Obama consistently favored equal rights and benefits for lesbian and gay couples (i.e., civil unions), but maintained that "we should try to disentangle what has historically been the issue of the word 'marriage,' which has religious connotations to some people, from the civil rights that are given to couples.... " (7)

   At a presidential candidates' forum hosted on August 16 by Reverend Rick Warren at the Saddleback Church in California, Senators McCain and Obama were both asked, "Define marriage." (8) Although Tobias Wolff (the LGBTQ+ policy adviser to the campaign) had implored the handlers to ask the candidate not to throw over gay couples entirely, Senator Obama answered: "I believe that marriage is the union between a man and a woman. Now, for me as a Christian," he said as the audience applauded enthusiastically, "it's also a sacred union. God's in the mix." (9) Senator Obama's opposition to marriage equality vexed his LGBTQ+ supporters.

   Longtime Chicago friend, ally, and adviser Valerie Jarrett maintains that Barack Obama was genuinely committed to completely equal treatment of gay persons in all matters civil, but that his religious faith told him that the sacred understanding of conjugal marriage required the exclusion of nonprocreating same-sex couples from the institution, as a matter of definition. (10) This is why he was attracted to civil unions, which gave LGBTQ+ couples exactly the same legal rights and benefits straight couples could secure by getting married--non-discrimination as a matter of legal rights--while respecting the "sacred" space marriage occupied in our society. (11) If you frame marriage equality as a civil rights issue, akin to employment bars, you are likely to consider the marriage exclusion "discriminatory." But if you frame it as a family or religious issue, you are likely to consider the marriage exclusion "definitional" and not discriminatory. Jarrett did not share her friend's devout Christianity and supported marriage equality, but she respected his faith-based reasons for civil unions rather than marriage. (12) Obama himself says he did not see the definition of "marriage" as discrimination in the same way that the military exclusion was discrimination. He felt that civil unions were "a sufficient way of squaring the circle" in 2008. (13)

   David Axelrod, Senator Obama's campaign manager in 2008, says that the candidate was not being completely candid. "Opposition to gay marriage was particularly strong in the black church, and as he ran for higher office, he grudgingly accepted the counsel of the more pragmatic folks like me, and modified his position to support civil unions rather than marriage, which he would term a 'sacred union.'" (14) Axelrod's account resonates with the literature penned by freedom-to-marry activists, who claim credit for President Obama's coming out of the closet on the marriage issue. Lawyer-blogger Kerry Eleveld and marriage advocates such as Marc Solomon and Evan Wolfson provide a roadmap for the President's "evolution" that closely tracks pressure placed on the administration by activists. (15) Their assumption was that the President was their ally all along but needed constant nudging and occasional left-of-center outrage to do the right thing. (16)

   Based on conversations with his supporters and fundraisers, my view is that Senator Obama was strongly and sincerely committed to the antidiscrimination norm, but also believed that it would have been difficult for any candidate who openly supported marriage equality to have been nominated by the Democratic Party or to have been elected President in 2008. There was a strategic feature to the Senator's support for civil unions, rather than marriage, but there was also an underlying commitment to a constitutional process that the candidate believed would lead to marriage equality. I have dubbed such a process equality practice: advance equal treatment of an unfairly disparaged minority step by step, with opportunity for the public and the government to observe the consequences; there will be a learning curve that can be the basis for further deliberation and, possibly, reform. (17)

   Senator Obama's view was that the most urgent federal gay rights issues were hate crimes legislation and repeal of the Clinton-era statute barring "homosexual" and "bisexual" persons from serving in the armed forces. Leave the marriage issue to the states for the time being. Massachusetts was issuing marriage licenses, and five states had created civil unions or domestic partnerships with all or most of the rights afforded married couples: California, New Hampshire, Oregon, Vermont, and Washington. Other states, such as Hawaii, Maine, Maryland, and New Jersey, offered some marital benefits to same-sex couples. Just as civil rights advocates had fought state-by-state to eliminate bars to different-race marriage after World War II, marriage equality advocates sought to achieve more advances at the state level before aiming for a Supreme Court pronouncement following Loving v. Virginia. (18)

   Senator Obama was elected President in November 2008. Between 2009 and 2012, both the...