I suppose it was inevitable:
The Supreme Court announced on Friday that it would enter the national debate over same-sex marriage, agreeing to hear a pair of cases challenging state and federal laws that define marriage to include only unions of a man and a woman.
One of the cases, from California, could establish or reject a constitutional right to same-sex marriage. The justices could also rule on narrower grounds that would apply only to marriages in California.
The second case, from New York, challenges a federal law that requires the federal government to deny benefits to gay and lesbian couples married in states that allow such unions.
There are a lot of ways this could play out, but I’m hopeful that the Court gets it right. First, a few assumptions:
- We will eventually have gay marriage in this country. Whatever you think about the merits of it, it’s going to happen, because young people are being taught that it is a civil right and have been taught that way for years. It may take a while to become universal, but it will happen and probably within 10 year, maybe sooner.
- The secondary considerations in how these cases are decided are more important than the actual ruling on the merits.
- We don’t need any more Roe v. Wade type decisions, although we could get one when it’s done.
The New York case is a challenge to the Defense of Marriage Act, or DOMA, which defined marriage for federal purposes as the union of one man and one woman only. This sailed through Congress and was signed into law by Bill Clinton in 1996. At this point, if DOMA goes down it won’t bother me that much. One size fits all federal laws are always going to be problematic and this one is no different.
The inevitable reply — but what about the Civil Rights Act? That would be the exception that tests the rule. The Civil Rights Act simply codified the constitutional rights conferred by the 13th, 14th and 15th Amendments, especially the 15th, which reads as follows:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
The Congress shall have power to enforce this article by appropriate legislation.
By my reading, the Civil Rights Act is precisely the “appropriate legislation” that the 15th envisions. You can argue, and some do make this argument, that gay marriage is a 14th Amendment issue, based on the Equal Protection clause. Well, maybe. But there’s nothing as clear the 15th Amendment that involves gay marriage.
To me, the California case matters a lot more. In that case, a single judge on the 9th Circuit struck down California’s Prop 8, which amended the state constitution to define marriage as one man, one woman.
You can argue that the judge is right and the citizenry of California was wrong to pass Prop 8. I find it pretty problematic, though. If a single federal judge can strike down a section of a state constitution and get by with it, it means two things:
- A federal judge can be a king; and
- State government is nothing more than an administrative entity.
- Go ahead and strike down DOMA. In retrospect, it was an overreach of federal power and now we can recognize that.
- Strike down the judge from the 9th Circuit because of his overreach and reinstate Prop 8. Then let Californians decide if they want to get rid of Prop 8 in the next election cycle.
What I fear is that the Supremes will just decide to rule on gay marriage itself and either invalidate the laws of the states that have it or compel the other states that don’t to have it. That result leads to this generation’s Roe v. Wade. We don’t need that. Since I assume gay marriage will eventually win in the court of public opinion, it would be better if the Supreme Court let the court of public opinion decide the matter.
Not that I expect it to happen, of course.
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