Two very big gay marriage cases will be heard by the Supreme Court in the next week. Hollingsworth v. Perry is aboutCalifornia’s Proposition 8, which created a state constitutional amendment to ban same-sex marriage. The other United States v. Windsor is about DOMA. DOMA, the Defense of Marriage Act holds that regardless of state law same-sex couples will not be treated as married for purposes of federal law.
It would seem that if you are pro-gay marriage you will be rooting for Perry and Windsor. That position would commonly be considered the liberal one. If you think gay marriage is an abomination , you would, by similar logic be rooting against them, which is probably the conservative position. That being more or less the standard line-up tends to confirm my belief that constitutional purists are thin on the ground. Activists and advocates use the Constitution like a drunk uses a street-light, more for support than illumination. It seems to me that somebody who really cares about Constitutional principles should be rooting for either Perry or Windsor, but not both of them. If you are fond of federal supremacy then root for Perry. If you are attached to states rights, then root for Windsor.
Being a mere CPA, with a fondness for American history, I was really glad to see somebody a lot smarter than me make the conservative case against the Defense of Marriage Act. That would be George Will in a recent column – DOMA Is An Abuse of Federalism
Conservatives who supported DOMA should, after 17 years’ reflection, want the act overturned because its purpose is constitutionally improper. Liberals who want the act struck down should be discomfited by the reason the court should give when doing this.
George Will points to an amicus brief of which Ernest Young of Duke Law School is the principle author:
To understand the harm that could be done by an unlimited federal power to define the terms of domestic-relations law, Young recalls when a few states, venturing beyond the national consensus, began experimenting with no-fault divorce. Suppose, Young says, Congress passed a statute refusing recognition, for purposes of federal law, of any divorce where neither party made a showing of fault:
“The couple would continue to be treated as married for purposes of federal income tax, health care programs and veterans’ benefits. Imagine the chaos this would wreak in the administration of state programs, and the pressure it would impose on states not to experiment with divorce law.”
Will sums it up rather nicely:
Liberals praise diversity but generally urge courts to permissively construe the Constitution in order to validate federal power to impose continental uniformities. DOMA is such an imposition. Liberals may be rescued from it by jurisprudence true to conservative principles, properly understood.
I’m going to take it on myself to make the liberal case against Perry. It is pretty simple. Proposition 8 was a referendum, one of the purest forms of direct democracy. Do you really want to overturn a referendum with a court decision ? Particularly since public sentiment is shifting toward favoring gay marriage. It would be much better to win by having a do-over on the referendum rather than by having the Court take the question outside of the political process.
You can follow me on twitter @peterreillycpa.