From Obamacare to Obergefell: The Obama Administration’s Troubled Legacy on Religious Liberty

Below is an excerpt from an article that I co-authored with my colleague, Andrew T. Walker. The article was originally published by National Review.

For eight years, the Obama administration brought fundamental change to American life. As the administration comes to an end, it is appropriate to evaluate its legacy. And though many such assessments will be written, among the most important issues to consider is the Obama administration’s record on religious liberty. As we’ll argue based on episodes throughout President Obama’s time in office, this administration oversaw an unprecedented effort to intentionally malign and dethrone religious liberty as a central pillar in American political and civil life. Notwithstanding this overall record, and though neither of us is a political supporter of Obama, we applaud the efforts made by the administration in a few areas to champion religious liberty.

In 2008, Obama was a U.S. senator and presidential candidate publicly opposed to same-sex marriage. Much has changed in eight years. For the foreseeable future, the legacy of the Obama administration will rest on two alliterative, colossal initiatives that have left an indelible crater on the landscape of religious liberty: Obamacare and Obergefell v. Hodges.

Defense of Marriage Act

The decision in Obergefell v. Hodges, which established that same-sex couples possess a constitutional right to marry, was the product of the Supreme Court. But the June 2015 ruling could not have been achieved apart from the considerable efforts of the Obama administration. In February 2011, more than four years before Obergefell, Obama instructed Attorney General Eric Holder to cease all efforts to defend Section 3 of the Defense of Marriage Act (DOMA). That legislation was signed into law in 1996 by President Bill Clinton and established two things: As states began to settle the question of same-sex marriage, Section 2 of DOMA guaranteed that no state could be compelled to recognize a same-sex relationship that was “treated as marriage” in another state. Similarly, Section 3 defined marriage, for federal purposes, as “only the legal union of one man and one woman as husband and wife.”

A full year before he publicly declared his support for same-sex marriage, Obama determined that Section 3 of DOMA was unconstitutional and under his direction, the Department of Justice refused to defend the law from challenges. But it did not stop there. In 2013, the administration filed a legal brief in opposition to DOMA in United States v. Windsor. In a 5–4 decision, the Supreme Court held that DOMA’s definition of marriage violated the due -process clause of the Fifth Amendment and was therefore unconstitutional, following the same line of argument presented in the amicus curiae brief from Solicitor General Donald Verrilli, the administration’s chief advocate before the Court. Aware that Windsor cleared the path for same-sex marriage nationwide, President Obama hailed the ruling as a victory for equality and a blow to discrimination (the implication being, of course, that a belief contrary to the Supreme Court’s decision must be based in animus toward gay people). As Justice Antonin Scalia remarked in his dissenting opinion, the ruling of the majority essentially declared “anyone opposed to same-sex marriage an enemy of human decency.” The administration’s decision to abandon DOMA signaled the perilous future for religious freedom in America.

You can find the entire article here.