The major media coverage of Obama's change of heart (a/k/a evolution) on same-sex marriage has been to assert that the President now is in favor of same-sex marriage, but that he thinks the issue is one for each state to decide on its own. Some commentators in the blogosphere have noted that this position is at odds with the President's refusal to defend DOMA. Now comes Lyle Denniston to argue that Obama's position on DOMA is consistent with state autonomy on this issue. Denniston is an astute observer of constitutional issues, and thus I am loathe to disagree with him, but he's wrong on this matter. His basic point is that the administration's refusal to defend DOMA stems from the belief that DOMA interferes with state autonomy. As added evidence, Denniston cites the adminstrations's failure to add its voice to the legal opposition to California's Propostion 8.
The flaw in Denniston's argument is that DOMA does not interefere with state autonomy. DOMA does two things: First, it states that no state is "required to give effect to any public act, record or judicial proceeding of any other state ... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state ... ." Second, it limits the legal benefits accorded to married persons under federal law to married persons of the opposite sex. Contrary to Denniston's assertion, it does not federalize marriage law, although, of course, it does limit the federal benefits of marriage to traditional marriages. In that narrow sense, it "federalizes" an aspect of marriage law. But the other aspect of DOMA preserves state choices on this volatile marriage issue. The President cannot credibly claim that his opposition to DOMA is all about fostering state discretion on same-sex marriage. He wants it all ways -- he's for same-sex marriage, but he wants states to decide on their own, yet he's opposed to DOMA's preservation of state ability to do just that.