Wednesday, June 29, 2011

Defense of Marriage

Lucia and I have both written about how much we like and admire Jon Stewart, and how smart we think he is. But smart doesn't necessarily mean right. A couple of nights ago, he set up a great joke on the irony of a mixed-race president supporting the states' right to establish their own laws for marriage. The irony, of course, is that at the time Barack Obama was born, his parents' marriage, and thus his own birth, was illegal in several states. It took federal action -- the landmark Supreme Court decision in Loving v. Virginia -- to end states' ban on interracial marriage.

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Funny. Ironic. And there's a very good case to be made that marriage laws ought to be federal, because marriage is a basic human right that everyone should enjoy. Ever since the Fourteenth Amendment, no state -- in theory anyway -- has had the right to abridge its citizens constitutional rights.

But there's also a good case to be made that Obama's stance is the better one. He opposes DOMA, but does not support using federal law to establish a right to marriage.

What's DOMA? In 1996, President Clinton signed the Defense of Marriage Act (DOMA) into law. Previously, states had always set their own marriage laws, but a marriage in one state was legal everywhere else in the country. DOMA took away the guarantee that no matter where you got married, your marriage would be accepted in all states. Under DOMA, the federal government defined marriage as a union between a man and a woman, and declared that no state would be required to accept a same-sex marriage from another state. In 1996, no states had same-sex marriage, but DOMA set off an avalanche of state laws -- including California's notorious Proposition H8 -- which limited marriage rights and declared that the state would not accept single-sex marriages performed in other states.

A year ago, a federal court ruled DOMA unconstitutional. The Justice Department could have appealed the decision, but the president decided he, too, believed it was unconstitutional, and chose not to do so. House Republicans, however, may still do go there.

So that's where we are right now: We have a law on the books making gay marriage essentially illegal, but it's been declared unconstitutional. That decision may or may not get appealed to a higher court. At the same time, six state governments, as well as the District of Columbia, have legalized same-sex marriage, while 41 have specifically outlawed it. It's a legal maze.

As I said, there's a good case to be made for straightening the whole thing out, either by the Supreme Court ruling -- as they did in Loving v. Virginia -- that discrimination in marriage rights is still unconstitutional, or by congressional action.

But there's an equally good case to be made for hanging back, and, in a very persuasive essay on all the ways Barack Obama has supported gay civil rights issues, Andrew Sullivan makes that case:
Civil marriage has always been a state matter in the US. That tradition goes all the way back; it was how the country managed to have a patchwok of varying laws on miscegenation for a century before Loving vs Virginia. The attack on this legal regime was made by Republicans who violated every conservative principle in the book when they passed DOMA, and seized federal control over the subject by refusing for the first time ever not to recognize possible legal civil marriages in a state like Hawaii or Massachusetts. Defending this tradition is not, as some would have it, a kind of de facto nod to racial segregation; it is a defense of the norm in US history. And by defending that norm, the Obama administration has a much stronger and more coherent case in knocking down DOMA than if it had echoed Clinton in declaring that the feds could dictate a national marriage strategy.

More to the point, until very recently, if we had had to resolve this issue at a federal level, marriage equality would have failed. The genius of federalism is that it allowed us to prove that marriage equality would not lead to catastrophe, that it has in fact coincided with a strengthening of straight marriage, that in many states now, the sky has not fallen. That is why a man like David Frum has changed his mind - for the right conservative reason. Because there is evidence that this is not a big deal and yet unleashes a new universe of equality and dignity and integration for a once-despised minority. Obama's defense of federalism in this instance is not a regressive throw-back; it is a pragmatic strategy.

Sullivan is arguing two points. The second, I agree with strongly: Obama's position is politically smart -- not "politically smart" as in taking a position likely to help you get elected, but "politically smart" in the sense of likely to accomplish something. The decision may -- probably will -- eventually make its way through the courts, but that will take time, and in any case, the president has already taken the best course of action here, in refusing to have the Justice Department defend DOMA.

And when it comes to pushing to federalize marriage laws -- whether or not it's right, it's not going to happen. When the Speaker of the House is considering defending the indefensible DOMA, and Senate Republicans hold enough seats to block everything, while the Presidential candidates most appealing to the base see bigotry as a political résumé builder (remind you of anyone?), expecting to move the legislative branch toward approval of marriage rights would be a fool's errand. It's more likely to go the other way. Push for marriage rights, and you will get marriage discrimination more deeply embedded in law, and give Republicans an issue to run on in the elections next year.

Morally right, maybe. Politically dumb, certainly.

The second argument Sullivan makes is a conservative one -- that change works best when done on a local level, in part because it gives people a chance to try things out on a small scale and see how they work. Gay marriage becomes less threatening when people see that it can happen in some states without the world falling apart.

In general, I think the phrase "states' rights" is just code for allowing states to discriminate against its citizens. But there's a principled, conservative argument to be made for moving slowly through the states, and Andrew Sullivan makes it here.

I'm not a conservative, though, and I think it's wrong to make basic rights wait for public approval. Moreover, I think we've already arrived at the point of public approval. In 1968, a year after Loving v. Virginia, a Gallup poll showed 3/4 of Americans still disapproved of interracial marriage. It didn't get majority approval until 1997! In contrast, today 53% of Americans think gay marriage should be legal.

If the right to interracial marriage operated on the same principal Sullivan is proposing for gay marriage, Barack Obama's parents' marriage would still be illegal.

The Supreme Court needs to establish this fundamental human right, and I think eventually it will take on the issue.. And unlike our dysfunctional Congress, the Supreme Court, however conservative and opposed to the rights of ordinary Americans it has proven itself to be recently, has shown signs of being open to an important decision:

Most observers believe that any decision on gay marriage by the current court would probably come down to the opinion of Justice Anthony Kennedy. But that is no cause for pessimism. The gay equality movement has had few judicial friends more staunch than Kennedy, the author of the court’s two leading decisions honoring that cause.

In addition to writing Lawrence in 2003, Kennedy wrote a significant opinion for the court in Romer v. Evans, seven years earlier. That decision invalidated an amendment to Colorado’s constitution that prohibited treating homosexuality as a class deserving protection from discrimination. Kennedy pointedly began Romer by citing Justice John Marshall Harlan’s much-celebrated dissent in Plessy v. Ferguson, the 1896 case that validated “separate but equal.” With that exquisite citation, Kennedy demonstrated that he understood the movement for gay equality to be a legitimate heir of the movement for racial equality. His concern about society’s treatment of gays extends at least as far back as his days as a circuit court judge. In fact, an opinion involving gay rights that he wrote for the Court of Appeals for the 9th Circuit in 1980 caused some Reagan administration officials to find the prospect of placing him on the Supreme Court deeply disconcerting.

The Supreme Court's recognition of same-sex marriage rights is something to hope for. In the meantime, though, I find Andrew Sullivan's argument for political pragmatism compelling.

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