On the left and right, advocates on the marriage issue find it useful to portray the Supreme Court’s ruling on gay marriage as doing what it expressly did not do: recognize a right to gay marriage that would require states to adopt an expansive view of marriage. It gives heart to the left to portray the Defense of Marriage Act opinion in its broadest fashion, and it makes for good fundraising for social conservatives to portray it as relegating “traditional marriage” to the ash heap of thousands of years of history.
But in these advocates’ defense, as a jurisprudential matter the majority opinion by Justice Anthony Kennedy is convoluted (if not unintelligible) and strikes one as a political compromise with the liberal justices. Critics of the decision have a strong point when they argue, as John Yoo does via e-mail, that the “part of the opinion, which is actually what finds DOMA unconstitutional, is embarrassingly deficient. It does not identify the right clearly, it does not specify the standard of review, and it does not explain why Congress is assumed to be acting purely out of bad motives.” That is all true.
And as Ed Whelan points out, Justice Antonin Scalia’s dissent is intellectually on firm ground when making the point that the case begins like a 10th Amendment treatise, shifts to an equal protection argument but then concludes that “a constitutional requirement to give formal recognition to same-sex marriage is not at issue here.” It is certainly a new sort of 14th Amendment that is NOT applicable to the conduct of states.
Perhaps the legal “realists” have it right — the big cases are decided by horse trading and politics. On this and Obamacare, the most dramatic instance of political compromise and judicial evasion, the court put a judicial face on a political judgment.
But, you may say, aren’t you a defender of gay marriage? Indeed, but the more honest and sounder route would have been to leave the tortured 14th Amendment reasoning aside and rule on the 10th Amendment, an outcome that in the first pages of Kennedy’s opinion is amply supported.
Be that as it may, we are — however we got here — at the point in which the federal government can and must get out of marriage politics. That outcome is rather helpful as a political matter to national Republicans who can now defend “traditional marriage” in their own states while recognizing other states have different judgments on the matter. In this way, they can forgo offending social conservatives but also not antagonize gay marriage advocates. In essence they can embrace the principle of federalism and let states have it out.
That is precisely the road Sen. Marco Rubio took in defending his personal belief in the “traditional” definition of marriage, and then pivoting to this:
I appreciate that many Americans’ attitude towards same-sex marriage have changed in recent years. I respect the rights of states to allow same-sex marriages, even though I disagree with them. But I also expect that the decisions made by states like Florida to define marriage as between one man and one woman will also be respected.
I do not believe there exists a federal constitutional right to same-sex marriage. Therefore, I am glad the Supreme Court did not create one in the Proposition 8 case. Rather than having courts redefine marriage for all Americans, my hope is that the American people, through their state legislatures and referendums, can continue to decide the definition of marriage. It is through debates like this that the brilliance of our constitutional system of democracy, and the inherit goodness of our people, is revealed. My hope is that those of us who believe in the sanctity and uniqueness of traditional marriage will continue to argue for its protection in a way that is respectful to the millions of American sons and daughters who are gay. It is also my hope that those who argue for the redefinition of marriage to include same-sex marriage will refrain from assailing the millions of Americans who disagree with them as bigots.
That last part (appealing to the decency of advocates on both sides) is likely too much to hope for, but his political reaction is sure-footed.
That, by the way, is the same spirit in which GOProud, the gay conservative organization, greeted the opinion. In GOProud’s view, it was a good thing to throw out DOMA, but then it sounded a Rubio-esque note in concluding:
As constitutional conservatives, we are pleased that the Supreme Court affirmed that marriage and family law is the purview of the states. We have been longtime supporters of marriage being a states’ right. DOMA was a gross federal overreach and the Court was right in striking it down. We are also delighted that same-sex couples in California will now, again, have the freedom to marry the person they love.
We know that stable, loving, committed relationships are the cornerstone of our society and should be protected and encouraged for all couples – including gay and lesbian couples. Now, we will make that case, state by state, in an effort to legalize civil marriage for gay couples by the people directly or through their elected representatives.
Kennedy’s muddled opinion notwithstanding, the result is not at all reminiscent of the aftermath of Roe v. Wade, as some social conservatives are arguing. The court today did not monopolize the field on the issue and instead invited democratic branches in the states to figure this out. I would have preferred a sounder and more honest 10th Amendment rationale, but I can’t say I am disappointed in the least in the outcome or in the prospect of sending this issue to the states, where it rightly belongs.
Republicans actually get the best of both worlds — they can defend whatever definition of marriage they prefer, need not defend DOMA and can cease providing to liberals the “intolerant” stick with which to beat them. I would expect within a decade that gay marriage will be recognized in all but a handful of states.
UPDATE: Indiana Gov. Mike Pence took the Rubio approach in a written statement, which read in part: “I believe marriage is the union between a man and a woman and is a unique institution worth defending in our state and nation. For thousands of years, marriage has served as the glue that holds families and societies together and so it should ever be. While I am disappointed that the Supreme Court has overturned the federal Defense of Marriage Act, I am grateful that today’s decisions respect the sovereignty of states on this important issue. These decisions preserve the duty and obligation of the states to define and administer marriage as they see fit. Now that the Supreme Court has had its say on the federal government’s role in defining marriage, the people of Indiana should have their say about how marriage is understood and defined in our state.”
UPDATE II: If not among activists then among Republican politicians, reality has dawned. From the speaker of the House to Sen. Ted Cruz (“Our federalism allows different states to make different policy judgments based on the values and mores of their citizens. Federal courts should respect that diversity and uphold that popular sovereignty, not impose their own policy agenda”) they have figured out — unlike some think tanks (Heritage:”This is an extreme activist ruling that ignores the voices of Americans throughout our nation”) activists and pundits — that moving gay marriage to the states is a fine idea.