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passingofdays  ·  4588 days ago  ·  link  ·    ·  parent  ·  post: Gawker: Barack Obama’s [BS] Gay Marriage Announcement
There is a HUGE difference between "should be able to" and "have the right to." I am a complete proponent of gay marriage and, as a legal matter, am still unsure whether gay couples have the right to marry. I don't think you realize how monumental such a statement would be.

First of all, where would this right spring from? Is it just something people should be able to do? Is it a "human right," whatever that means? A constitutional right? If it's a constitutional right, does it spring from substantive due process or equal protection? Does it apply to the federal government through the 5th amendment or only state governments through the 14th amendment?

Assuming that it's a constitutional equal protection right, why the hell is the president telling the Supreme Court how to do their job? Your example with black and white children attending the same schools is a totally different situation: there, the Supreme Court had ALREADY decided black and white children had a right to attend the same schools. The executive branch was dragging its feet in executing EXISTING LAW. I may be incorrect here, but I know of very little historical precedent for the president making a public statement about how laws should be interpreted. That's simply not his job.

If Obama truly believes that gay people have a constitutional right to marry, what action should he take? As President, he needs to enforce the laws. So he needs to go after 42 states for violating the federal constitution, even though the Supreme Court does not believe these states are in violation of the constitution?

FInally, Obama saying that gay couples "have a right" to marry is patently false. Under current civil rights jurisprudence, they don't. This would be like JFK saying that women "have a right" to an abortion in the 60s. It's simply not true. I guess if you wanted to get really nitpicky, you could ask that Obama say something further, like "I believe that gay couples should be able to marry. I encourage the Supreme Court to accept certiorari in Perry v. Brown and not only affirm the 9th Circuit's decision but find that equal protection extends to same-sex marriage." That gets you maybe halfway to a President straight up saying gay couples "have the right" to marriage. And can't you see how overreaching this statement is compared to an expression of his personal beliefs?

Anyway, I hope this rant was somewhat coherent. To the general public, there is little difference between "should be able to" and "have a right to." To the legal and political community, there is a major difference between a president expressing his personal views on a political issue and a president expressing a patently incorrect interpretation of the law.