The marriage rights dominoes fall

Constitutional amendment or bust.

In 2004, with the first U.S. legal recognition of homogamous marriages looming, President George W. Bush issued a characteristically keen legal analysis. To save marriage as an exclusive institution involving a legal bond between one man and one woman, a Constitutional amendment was the only recourse. With the Obama administration’s decision to bail out on defending the Defense of Marriage Act, the prescience of that position has become even more clear.

Bush said:

Activist courts have left the people with one recourse. If we are to prevent the meaning of marriage from being changed forever, our nation must enact a constitutional amendment to protect marriage in America. Decisive and democratic action is needed, because attempts to redefine marriage in a single state or city could have serious consequences throughout the country.

The Constitution says that full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state. Those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America. Congress attempted to address this problem in the Defense of Marriage Act, by declaring that no state must accept another state’s definition of marriage. My administration will vigorously defend this act of Congress.

Yet there is no assurance that the Defense of Marriage Act will not, itself, be struck down by activist courts. In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage. Furthermore, even if the Defense of Marriage Act is upheld, the law does not protect marriage within any state or city.

For all these reasons, the Defense of Marriage requires a constitutional amendment…

Obama’s legal position proves the point. There is simply no way, within the Constitution, to legitimately defend extending a series of rights and privileges to marriages of one gender composition and not another, as Judge Walker wrote so beautifully in the California Proposition 8 decision, Perry v. Schwarzenegger. The experience in that case — when the Schwarzenegger administration backed out of defending Prop. 8 — and the current round of cases, show the difficulty of defending the principle of gender inequality in the case of marriage.

As Jeffrey Toobin summarizes:

The arguments against DOMA are virtually identical to the arguments against bans on same-sex marriage. As the Proposition 8 trial in California demonstrated, there are very few, if any, justifications for denying gay and lesbian people the right to get married. Judge Vaughn Walker applied a rational basis test to Prop 8 and struck it down. He said it was completely irrational to discriminate against gay people in this manner.

The challenge for Scalia, Thomas and company, if they intend to uphold marriage inequality, is steep. This is not really a case of activist judges creating a new right to gay marriage. Rather, to continue the federal government’s ban on recognizing homogamous marriage — on recognizing some marriages granted by the states but not others, on the basis of the gender and sexual orientation of the participants — is to create an exclusive right for heterogamous couples that is not in the Constitution, and then deny it to protected classes of people. That’s difficult. Not that Scalia can’t find a way, but it won’t be pretty.

As for a Constitutional amendment, somehow that doesn’t seem to be high on the anti-homogamy agenda these days. If that’s your only issue, there is no other choice. But as part of a conservative coalition, a simple analysis of public opinion by generation shows that it’s a weak plank in the platform:

And time is not on their side. If they want a Constitutional amendment to ban homogamous marriage, it’s probably too late.

5 thoughts on “The marriage rights dominoes fall

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