The Supreme Court and the future of marriage

Evolution and shifts in position
In 2004, when he was running for the U.S. seat Senate in Illinois, Obama repeatedly said he opposed same-sex marriages.

“I’m a Christian, and so although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman,” he said in 2004 on Chicago TV station WBBM.

He told gay rights supporters in Iowa last year, “You want the word ‘marriage,’ and I believe that the issue of marriage has become so entangled, the word ‘marriage’ has become so entangled with religion, that it makes more sense for me as president, with that authority, to talk about the civil rights,” rights that would come from civil unions.

Obama also said in late 2003 that he was against repeal of the Defense of Marriage Act. But he switched his view on that question early in 2004 and said he would work to repeal DOMA.

Obama has said he is opposed to same-sex marriages, but he has not explained why he also opposes measures to ban them.

And Obama now thinks DOMA should be repealed. If he gets his way and it is repealed, then in time the states where same-sex marriage is banned would likely be forced to recognize the marriages of same-sex couples who move in from the states that permit same-sex marriages.

In that event same-sex marriages would be legal in all states, even if some states wanted to keep it illegal.

McCain, like Obama, opposes same-sex marriages, but he also voted against an amendment to the U.S. Constitution that would have outlawed such marriages. He did so, he said in 2006, “because I think the states should decide. That's the essence of federalism.”

The Arizona senator did say in 2006 that if the Supreme Court were to strike down DOMA, “then, and only then, would the problem justify Congress making the momentous decision” to amend the Constitution to outlaw same-sex marriages.

But it was far easier to enact DOMA than it would be to amend the Constitution, which requires a two-thirds vote in both houses of Congress, followed by ratification by three-fourths of the state legislatures.

How they have voted
McCain voted for DOMA in 1996. Obama was not a member of the Senate at that time.

Both men voted against the proposed amendment to the United States Constitution in 2006 that would have defined marriage as only between one man and one woman.

Surprises for the new president
It is possible that at some point in the next president’s term, the Supreme Court could decide a case that would determine whether the U.S. Constitution implicitly guarantees the right for same-sex couples to marry.

In his dissenting opinion in Lawrence v. Texas, Justice Antonin Scalia warned that the decision “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.”

Yale law professor William Eskridge, a gay rights activist and a scholar whose research was cited in the majority opinion in Lawrence v. Texas, said in 2003 that “Justice Scalia is right in the long term” that Lawrence v. Texas will add to the momentum for recognition of gay marriages.

It also seems likely that one of the justices will retire during the next four years, setting the stage for a contentious Senate battle over confirmation of a Supreme Court nominee whose views on same-sex marriage would be of great interest to the senators questioning him or her.

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