Rep. James Clyburn, the House Democrats’ third-ranking leader, said on MSNBC’s Daily Rundown Monday that the question of legal recognition of marriage between same-sex couples should not be left to state laws, but instead ought to be decided at the national level, a position that puts him at odds with President Barack Obama.
Clyburn told NBC’s Chuck Todd, “If we consider this to be a civil right, and I do, I don’t think civil rights ought to be left up to a state-by-state approach. I think we should have a national policy on this.”
But the South Carolina Democrat did not explain how such a national policy might be enacted and what route he’d advocate to reach his goal.
Thirty-eight states -- including Clyburn’s own -- have adopted prohibitions of same-sex marriage. Twenty-nine states -- including South Carolina and the 2012 battleground states of Colorado, Ohio, Florida, Nevada, and Virginia -- have provisions in their state constitutions defining marriage as a union between one man and one woman.
The first step in the direction of a national policy of legal recognition of same-sex marriages, as Clyburn is seeking, would need to be congressional repeal of – or a Supreme Court decision invalidating --the 1996 Defense of Marriage Act, signed into law by President Bill Clinton. (Clyburn voted for DOMA in 1996, as did most other House Democrats.)
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That law says that under federal law and for purpose of administering federal programs and benefits, marriage is solely between one man and one woman. DOMA also says states can’t be forced to recognize same-sex marriages performed in other states.
If DOMA were repealed or struck down, then there could be two possible ways to pass a national policy of recognition of same-sex marriages:
- Enactment of an amendment to the United States Constitution which would declare marriage a fundamental right and that any state law or state constitutional provision to the contrary is void. But ratification of a constitutional amendment would require approval by 38 states -- the same number that now bans recognition of same-sex marriages.
- A ruling by the Supreme Court which would find in the text of the Constitution a right for same-sex couples to marry.
In its 2003 Lawrence v . Texas ruling the court held that state laws banning sodomy were unconstitutional, but also said its ruling “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”
Clyburn on Monday seemed to imply that enactment of national policy would come through a Supreme Court ruling.
He alluded to the 1967 court decision Loving v. Virginia which struck down the Virginia law banning marriage between whites and blacks. The justices held that “the freedom of choice to marry not be restricted by invidious racial discriminations” because they violated the Constitution’s Equal Protection Clause.
“In my lifetime it was illegal in some states -- this state one of them -- for black and white couples to get married,” said Clyburn, speaking from South Carolina.
“Sometimes it takes the federal government to step into the breach to resolve many of these issues,” Clyburn said. “It certainly did that through the courts with the marriage question and it also did the same thing when it comes to whether people of color have the same rights that white people have.”
Clyburn noted that he was the son of a minister “and I grew up with that indoctrination and I have grown to the point that I believe that we have evolved to marriage equality.”
