Dear SCOTUS, Do As Little As Possible

Jon Rauch makes the case for restraint:

Here is a movie plot you have never seen and never will see: a disadvantaged athlete struggles against the odds, makes it to the Olympics by sheer force of grit and talent, and is ahead in the race for gold—when, with the finish line in sight, the referee calls off the competition, hands the hero a medal, and everybody goes home.

Gay Americans are in sight of winning marriage not merely as a gift of five referees but in public competition against the all the arguments and money our opponents can throw at us. A Supreme Court intervention now would deprive us of that victory. Our right to marry would never enjoy the deep legitimacy that only a popular mandate can bring.

As I have said before, I am conflicted on this issue. Like Jon, I fear success at the Supreme Court almost as much as I fear failure. The fact that the right to marry is constitutionally understood to be more basic a right than even the right to vote in constitutional history makes the Boies/Olson case very powerful. But as a prudential matter, I agree with Jon that minimalism would be the best way forward. And I can say that with even more personal history in this struggle than Jon.

WeddingaisleLook: federalism is the only way to maintain some kind of cohesion in a country that is, in many ways, several countries. I love the fact that America can have both Seattle and New Orleans, Mississippi and Vermont. And I don't want that diversity, and its opportunity for experimentation to be diluted or flattened. That diversity must include cultural and religious difference, and the opposition to marriage equality is not all bigotry. There are genuine arguments that require rebuttal not suppression. And boy, have we succesfully rebutted them and made progress in a staggeringly fast process.

Yes, that deference to federalism requires constant adjustment – and absolutism on this is unwise on either side. I am well aware of what "states' rights" have meant in the past. But on the marriage issue, a single federal court decision now troubles for me several reasons. The first, as Jon argues, is that we are winning the public debate, and when a tiny minority has already won 50 percent support for something nationally, imposing that view on those states that are not there yet (but moving in our direction) seems unnecessary, divisive and coercive.

Marriage is a state issue – always was until DOMA came long. Federal institutions should, in my view, simply respect the states' decisions, not try to rationalize or coerce them. Allowing marriage equality to resume in California, and simply mandating that the federal government should treat all of a state's legal civil marriages equally would be my ideal outcome. And by making this argument, we can also begin to appeal to federalist conservatives, helping to broaden the coalition for equality, rather than imposing a premature national decision that would provoke an unnecessary backlash. Yes, Jon and I are gay conservatives/independents. Being gay does not mandate a position on federalism.

But I will not lie. If SCOTUS were to make a grand and large statement about the unalienable equality of gay citizens, I'd cry. My heart says one thing, but my head says another. We're winning the argument, because we have the truth on our side. When that is happening, why stop the process in its tracks?