Image: Protest
Mary Altaffer  /  AP
Gay rights advocates Sergio Llanos, left, of Queens, and Vito Hernovich, of Manhattan, chant slogans during a rally for same sex marriage outside the LGBT gala fundraiser where President Barack Obama spoke, Thursday, June 23, 2011 in New York.
By Tom Curry National affairs writer
updated 6/29/2011 5:02:28 PM ET 2011-06-29T21:02:28

With 13.9 million people unemployed, two million more than when Barack Obama took office, the economy is at the forefront of the 2012 campaign, already underway with a crop of GOP candidates eager to criticize president's policies.

But don't discount same-sex marriage as a potent influence on voters in this election cycle. Next year, the Supreme Court might consider the constitutionality of one section of the 1996 Defense of Marriage Act, or DOMA, which defines marriage as the union of one man and one woman.

If the Supreme Court agreed prior to Election Day that it would consider a challenge to DOMA, that would place the marriage issue squarely in the middle of the presidential campaign.

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“We’ve said that DOMA, the Defense of Marriage Act, is unconstitutional,” President Barack Obama said in his press conference Wednesday. “We cannot defend the federal government poking its nose into what states are doing and putting the thumb on the scale against same-sex couples.”

Asked whether he personally supports same-sex marriages, Obama replied, "I’m not going to make news on that today.”

But he praised the New York legislature for passing a law last week legalizing same-sex marriages in the state. New York is now one of six states that issue marriage licenses to same-sex couples.

Traditional marriage the law in most states
Thirty-seven states have statutes defining marriage in traditional man-woman terms. Additionally, 30 states define marriage that way in their state constitutions.

“It is important for us to work through these issues, because each community is going to be different and each state is going to be different,” Obama said Wednesday.

But a Supreme Court DOMA case might force the president to face the implications of the justices changing the states’ marriage laws, rather than the state legislatures changing them.

It wasn’t immediately clear if Obama’s “unconstitutional” comment applied only to Section 3 of the law, which is the Justice Department’s position, or if he now thinks the entire law is invalid.

He had said on previous occasions that Congress ought to repeal the entire law. He has also called DOMA “wrong” and “unfair,” but has not called the entire law unconstitutional.

Section 3 of DOMA says that in interpreting federal law, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.”

State allowed to refuse to recognize other states' marriages
A separate section of DOMA allows states to refuse to recognize same-sex marriages performed in other states.

Video: See Obama's full press conference (on this page)

Attorney General Eric Holder announced last February that the Justice Department would no longer defend the constitutionality of Section 3 of the law in the battles underway in federal courts across the nation.

The ongoing case that’s most advanced is one from Massachusetts, where last July federal district court judge Joseph Tauro struck down Section 3 of DOMA, saying it “lacks a rational basis” and denies equal protection of the laws to same-sex couples.

The plaintiffs in that case sought health benefits for spouses of federal employees, the right to file joint federal income tax returns, and other benefits.

The timing of the Supreme Court scheduling a DOMA case for its docket is far from certain, although legal experts agree that if the U.S. Court of Appeals for the First Circuit upholds Tauro’s ruling, the high court would almost surely agree to hear the case.

2012 battleground states
Nine states which are among the likely 2012 presidential battlegrounds have provisions in their constitutions asserting that marriage is the union of one man and one woman. Those states are Ohio, Virginia, Florida, Arizona, Colorado, Michigan, Missouri, Nevada, and Wisconsin.

Obama won seven of those states in the 2008 election. Eight of those nine states have Senate races next year, most of which are expected to be competitive.

Could 2012 be another 2004, when the issue motivated conservative voters in Ohio and other states?

In 2004, Ohio voters approved that state’s marriage amendment with 62 percent. Social conservatives were highly energized to vote, both to preserve the traditional definition of marriage and to support George W. Bush, who’d signaled his intention to nominate conservatives to fill the vacancies that were looming on the Supreme Court.

(After he won re-election, his kept his word, appointing Chief Justice John Roberts and Justice Samuel Alito.)

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Bush won Ohio by more than 118,000 votes. If Bush had lost Ohio, Democrat John Kerry would have won the White House.

In addition to Ohio, 10 other states in 2004 approved ballot measures banning same-sex marriage — and in most of those states, they approved them by overwhelming margins.

2012 might not turn out like 2004: for one thing, concerns like unemployment, the national debt and a crisis anywhere from North Korea to Iran may dominate voters’ thinking.

There’s also some dispute about just how significant the marriage issue was in helping Bush win in 2004.

What happened in Ohio?
In his statistical analysis of the 2004 election data, Stanford University political scientist Simon Jackman found that the presence of marriage initiatives on ballots of 11 states increased voter turnout by about 3 percent, but did not appear to boost Bush’s vote share, compared to 2000. Jackman’s county-by-county analysis in Ohio showed that support for the marriage ballot measure did not seem related to changes in voter turnout.

But a veteran expert on Ohio elections, political scientist John Green, director of the Institute of Applied Politics at the University of Akron said, “I'm convinced that the marriage amendment in Ohio made a difference in 2004 in two respects. By far the most important was the mobilization of religious activists, whose work on balance helped mobilize conservative voters. The second and smaller impact was on the Bush vote.”

Video: Obama defends gay rights record (on this page)

Green said typically an increase in voter turnout would have helped Kerry because Democratic voters are the least likely to vote.

“And yet Bush got a much larger share of that increased turnout than Republicans typically get — and much of this turnout was in Republican areas among folks with conservative sympathies. So in a very close election, Bush got a crucial boost in the GOP base,” Green said.

In next year’s election Ohio conservative activists could turn out in large numbers "but, of course, these folks already oppose Obama, so it would be hard to tell if it was because of DOMA or all the other things they don't like about the president.”

A ruling with wider implications?
If the justices agree to hear the challenge to Section 3 of DOMA and strike it down, then “the question is whether the rationale on which the court would strike it down could plausibly be limited and not have implications for the other sections of DOMA and for the marriage laws of the states that don’t authorize same-sex marriage,” said Ed Whelan, president of The Ethics and Public Policy Center, a conservative think tank.

Whelan, a former law clerk for Supreme Court Justice Antonin Scalia, served in the Justice Department’s Office of Legal Counsel during the Bush administration.

He added, “Same-sex marriage supporters recognize that that the very grounds on which President Obama now says Section 3 of DOMA is unconstitutional would also require him to take the position that traditional marriage laws are unconstitutional — a position that he has declined to take.”

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Dale Carpenter, a law professor at University of Minnesota and a supporter of same-sex marriage, said that if the high court strikes down Section 3 of DOMA it would prompt questions about the validity of state laws that say the same thing: that marriage can only be between one man and one woman.

“One would be very hard pressed to come up with an argument that struck down the federal definition of marriage, but nevertheless left in place the state definitions of marriage as the union of one man and one woman,” Carpenter said.

The effect of a high court ruling, if and when one comes, “depends on how the decisions are written: you could write a very broad federal DOMA decision striking down the Defense of Marriage Act, that does really call into question the individual state definitions, by saying that gay and lesbian couples can’t be discriminated against and the government has no good reason for doing so.”

Or, he said, the justices could write a much narrower decision that said the federal government in applying specific laws had no reason to distinguish between different types of married couples.

“It has been rare in the history of the court for the justices to buck a national consensus on any issue for very long,” Carpenter said. “It’s much more likely that the court will follow a national consensus rather than to lead a national consensus. The one notable exception to that in the past few decades was Roe v. Wade,” the court’s 1973 abortion ruling.

He added, “To the extent that there is still a broad national consensus in state law in favor of the traditional understanding of marriage, that makes a successful challenge to marriage laws much less likely to succeed.”

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Video: Obama defends gay rights record


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