If you watched Charlie Rose last night, you’ll know that my position on the cases in front of the court today and tomorrow is not a hope for a sudden 50-state Loving vs Virginia-style resolution. If I had my druthers, the perfect outcome would be dismissing the challenge to the ruling striking down Prop 8 on “standing” grounds, thereby allowing civil marriages to continue in California, striking down that part of DOMA which forbids the federal government from recognizing a state’s valid legal marriage licenses, on federalism grounds, and on heightened scrutiny grounds, striking down the “separate-but-equal” segregation of civil unions which are substantively identical to civil marriage.
The end result would be 17 states with marriage equality recognized by the feds, and the debate could then continue democratically as it should state by state. This is close to where the Journal comes out, with some critical differences. Here are my dissents. First off, the word “liberal,” as in:
Liberals do not merely contend that laws based on sexual orientation lack any “rational basis.” They also claim the only motivation for such laws is prejudice against gays. They therefore want the Court to designate homosexuals as a legally protected group like minorities or women and apply to Proposition 8 the highest levels of constitutional protection, called strict or heightened scrutiny.
Is Ted Olson now a liberal? Is Ken Mehlman a liberal? The argument that government discrimination against a tiny, long-persecuted minority could be viewed as worthy of heightened scrutiny is not restricted to liberals. And marriage equality was kick-started in part by gay conservatives. Just as some leftists have tried to air-brush the role of gay conservatives out of this movement (check out the far left smear artist here) so now some straight conservatives are too. They are both lying – for purposes of propaganda, left and right.
Second, since when do conservatives believe that the federal government should dictate to states what marriages should be?
Doma doesn’t usurp state prerogatives or outlaw experimentation, or else those nine states could not have legalized gay marriage since Doma passed. In the Constitution’s system of dual federal-state sovereignty, each coequal sovereign has the power to define marriage for its own sphere.
Some scholars of federalism claim Doma was meant to express a policy judgment about gay marriage that is not supported by the federal government’s enumerated powers. But Doma embodies federalism at its best by keeping the channels of democracy open. Section 2 says one state does not have to accept another state’s definition under the Constitution’s full faith and credit clause, preserving each sovereign’s right to decide for itself.
How many times does one have to repeat this before it sinks in? The full faith and credit clause does not now and never has required one state to recognize another state’s marriages. Even today, there are very different standards – age, consanguinity, etc – that make marriages different in various states. For centuries, the federal government tolerated diversity in the states with respect to inter-racial marriage, and simply respected those inter-racial marriages that were legal in their respective states. That is federalism. The breach was not Hawaii’s aborted attempt to provide gay couples with equal protection – but DOMA itself, which says the federal government should recognize only those state marriages it approves of. This was the unprecedented move – the anti-conservative move, the first ever attempt of the federal Congress to distinguish between various states’ marriage licenses.
Overturning DOMA is to overturn radicalism not conservatism, and restore the traditional balance between the federal government and the states on civil marriage. The feds have no role in this apart from recognizing whatever a state wants to do. Period. DOMA was a mixture of panic, misinformation, political opportunism (Rove, Bush, Morris and Clinton) and yet another betrayal of conservatism by the fundamentalist wing of the GOP. Repealing it is the conservative thing to do.
(Photo: Supporters of same-sex marriage gather in front of the US Supreme Court on March 26, 2013. By Jewel Samad/AFP/Getty Images. )