Another GOP senator endorses gay marriage

A while ago, Sen. Rob Portman of Ohio endorsed gay marriage, becoming the first sitting GOP senator to do so. He was just joined by Sen. Mark Kirk of Illinois. This is an important development.

Until Portman, it seemed as though the Democrats had the monopoly on this side of the issue. And it took his son's coming out to convince Portman. Now with Kirk as the second one, the GOP is moving in the direction it ought to: getting rid of the dominance by “social conservatives” — a code word for “religious bigots trying to impose their views on others.” We even have the spectacle of Speaker of the House John Boehner hiring an attorney to defend DOMA before the Supreme Court, because the Obama Administration accepts its unconstitutionality!

The Republican Party is generally the party in favor of freedom of the individual. But because of the “social conservatives'” power, it has taken the wrong stance on issues like abortion, gay rights, and such. That two sitting GOP senators have decided to push against the “social conservatives” can only be praised. Hopefully, they will be joined by more. The GOP needs to stand up to the “social conservatives.”

Reports that seem to come from the Court

What I see in the reports on the two days of hearings seems to confirm what I've said about DOMA — there's a strong states' rights argument that DOMA is unconstitutional. The Prop. 8 news seems to be a bit less clear, but it looks as though there's a good chance that the Court will rule that the anti-gay side has no standing, or that the court should not have granted certiorari, and in that case the Ninth Circuit opinion will stand: Prop. 8 in California is unconstitutional, but the status quo will continue in at least most of the 49 other states (legal where it is, illegal where it's not currently legal). This will mean the pro-marriage-equality side will have to keep working where they haven't won, but there is a precedent that will say that wherever gay marriage has been approved, that action can't be reversed. Inexorably, gay marriage will become legal in more and more states.

If all this comes to pass, it's good for advocates of equality. Not perfect, but good.

The two gay marriage cases

Yesterday and today, the Supreme Court has been hearing arguments on two gay-marriage cases, two which in fact are quite different but both bearing on the future of gay marriage. Given that I was certain that last year the Court would find “Obamacare” unconstitutional, I have no credentials as a Court decision predictor, and so I will not try on these, but there are a number of points to be made.

If the court wanted to take a strict “states' rights” position, it would rule that California's Proposition 8 was properly enacted, ending gay marriage in California, but invalidate the “Defense of Marriage Act” as an infringement on the States' rught to define marriage — a Tenth Amendment based decision. So gay-marriage people would have, then, a split decision.

It is, of course, possible that the Court would follow the precedent of Loving v. Virginia, as Ted Olson would suggest, and grant gay marriage rights nationwide as a Fourteenth Amendment (equal protection) right. I really don't expect this, but it would be a great day fopr gay couples if the Court did so

What could more likely happen, and was hinted at by at least two Justices, is that Hollingsworth v. Perry (originally called Perry v. Schwartzenegger and then Perry v. Brown: these changes can be quite confusing!) will not be decided at all; the Court will rule that the supporters of Prop. 8 have no standing to sue, gay marriages will resume in California as a result of a lower court decision, but the other 49 states will be unaffected.

Of course, we will not find out the decision for several months. The Court will do as it did in the Obamacare case, issuing its opinion in June rather than right away. So we are waiting while various analysts examine the questions the Justices asked to try to discern their thought processes.

Cal Thomas returns to form

A bit over a week ago, I posted a message expressing my surprise at finding a column in the Washington Examiner by Cal Thomas with which I actually agreed. well, in Yesterday's Examiner I saw another column by him. And while it is not the very next column after the one I commented on last week (there was at least one more column between the two), I found it striking at just how much this column illustrated just how far apart Mr. Thomas and I are on most issues.

The subject of yesterday's column was, in large part, the improperly-named Federal Defense of Marriage Act of 1996. He begins:

Given his track record on marital fidelity, former President Clinton is not the person I would consult about “committed, loving relationships.” Clinton used those words in a Washington Post op-ed last week, urging the Supreme Court to overturn the 1996 Defense of Marriage Act, which defines marriage as the legal union of one man and one woman, which he signed into law.

In his column, Clinton said that 1996 “was a very different time.” No state recognized same-sex marriage and supporters of DOMA “believed that its passage ‘would diffuse a movement to enact a constitutional amendment banning gay marriage, which would have ended the debate for a generation or more.’” Clinton says he now supports same-sex marriage based on justice, equality and the Constitution.

Now, while the slap at former President Clinton's marital history is, I believe, not entirely gratuitous, it really is out of place here — the issue is not Clinton's sex life, but the right of other people, who may be far more deeply committed, to enter into a relationship that they wish recognized as a marriage. But Cal Thomas is being a smarty-pants here, and bringing up Clinton's history to add an ad hominem reason to come out on the other side of the question. Whatever you think of Bill Clinton's conduct, it shouldn't be the issue in this discussion.

Mr. Thomas actually mischaracterizes DOMA anyway — it is only for Federal purposes that DOMA “defines marriage as the legal union of one man and one woman” — each state in fact can, at present, define it in that way or any other. And in fact, later in the same column, Mr. Thomas actually says:

The Constitution doesn't guarantee the right to marry. States, not the federal government, issue marriage licenses.

And this is a very important reason that DMA should be considered unconstitutional. But he continues:

Current laws restrict “underage” marriage, as well as polygamy. If same-sex marriage is approved, what's to stop polygamists from demanding legal protection and cultural acceptance? … So I ask, if “fairness” and “equality” are the standard, isn't it also “unfair” to “discriminate” against polygamists who wish to live in “loving” and “committed” relationships?

But while there is a case before the Supreme Court that addresses this issue — and I will get to that latter — DOMA does not have anything to do with whether a state should, or should not, permit any given couple (or set of more than two, if you bring in the question of polygamy) to marry. What DOMA says is that, even if a couple is married under the laws of the state of Massachusetts, the Federal Government will refuse to recognize that marriage if the two are both of the same sex. And that contravenes the usual Constitutional relationship between the states and Federal government. A simple Tenth Amendment argument makes DOMA unconstitutional.

Anyway, we aren't seeing suits to legalize polygamy, or “underage” marriage, and as recently as the 1950s, perhaps more recently (I haven't checked on when the law was changed) a 12-year-old girl (but not a boy!) could get married legally in one state. The charge that “if we legalize this, next we will be asked to legalize that,” is always raised when someone is opposed to the first one, but wants to try to scare people who are willing to permit it by bringing up the second, which he believes that fewer will accept. And that is a fallacious argument. If we legalize same-sex marriage, perhaps a movement will arise to legalize polygamy, but if you don't want to see polygamous marriages legalized, the time to oppose them is when that bill comes up. When we lowered the voting age to 18 from 21, people didn't complain that if we did that, soon we would have to lower it to 16, or 14, or 10, or even 7! Yet that's the same type of argument. What the proper voting age is can be debated — and I would be amenable to an age below 18, as I think that at 14, my political beliefs were already formed nearly fully — but the debate should center on what is the proper age, and not whether a lowering now leads to a further lowering later. And the same applies to expansion of who is allowed to marry legally.

Yes, I believe that same-sex marriage should be approved, but DOMA is not about that; it is about the Federal Government recognizing marriages that are already legal under state laws.

What Cal Thomas is really getting at, however, is contained in the next piece of his column:

Since we are rapidly discarding the rules for living and social order set down in a book found in most motel room drawers, what is to replace it? Opinion polls? Clever legal arguments? Fairness? What exactly does “fairness” mean and who decides what's fair? Many things may seem “unfair,” but not all can, or should, be addressed by courts.

Of course, the reference to “a book found in most motel room drawers” is to the Bible — what Thomas, of course, means is the Christian Bible, which has a number of books I do not recognize as scriptural, but let us not get into that debate here — and now we get into the First Amendment. There are people like Mr. Thomas who think that this amendment permits laws that are designed to impose the standards of one particular form of Christianity upon all of us, and clearly the purpose of this amendment was to prevent such laws. And I say “one particular form of Christianity” because, contrary to what Mr. Thomas may wish, there are churches that will perform same-sex marriages, so their clergy do not seem to think the Bible condemns them.

The Court is considering DOMA, and it is also considering the separate issue of whether states should be required to allow gay marriage. These are different issues. DOMA should be ruled unconstitutional because the Federal Government should not prevent a state's legal right to sanction a marriage from being recognized Federally. The other question is more nuanced. Ultimately, however, I think there is an equal-protection issue, and just as the Court held in Loving v. Virginia that people of different races should not be prevented from marrying, they ought to apply the same logic to people of the same sex. But there is a state's rights issue that points the other way. So this decision is less clear.

Changing the issue

Because of President Obama's decreeing a substantial part of the DREAM act unilaterally, without authorization by Congressional action, he has changed the issue. It is no longer a question of whether the DREAM act is desirable. It now has become a question of separation of powers under the Constitution.

Even someone who wants to see the DREAM act become law can oppose this act by the President, because the Constitution (Art. II, Sect. 3) states that the President “shall take Care that the Laws be faithfully executed.”

When Pres. Obama decided that he would not support the so-called “Defense of Marriage Act” in the courts, he had a constitutional basis for doing so — he believed (and I believe rightly) that the DOMA was unconstitutional, and that he was supporting the higher law (the Constitution) against the lower law (DOMA). In this action, I supported him. But the President has not claimed that our immigration laws were unconstitutional. Therefore he has an obligation under Art. II, Sect. 3 to “take Care that [this law] be faithfully executed.”

As I earlier said, this should be cause for impeachment, but will not, because the political facts of life will prevent it — none of the Democrats in the Senate will vote to convict, and they constitute a majority, not just the ¹/₃ that can kill an impeachment.

At least one Congressman says he will sue. This is a worthwhile effort, but the way our court procedures work, it will take years for this suit to get through the court system. The much faster procedure is to retire Barack Obama this November.

One more nail in the coffin of DOMA

A three-judge panel of the First Circuit Court has ruled the so-called “Defense of Marriage Act” unconstitutional. Unfortunately, it is unlikely that this will be the end of it; one of the few things I strongly dislike about the current Republican leadership in the House of Representatives is that it has taken up the cause of the homophobic bigots of this country, and has retained legal counsel that will probably appeal this verdict, even though the Obama administration will not. But given that this ruling was unanimous, it gives hope that the Supreme Court will let this decision stand.

I really cannot see any justification for DOMA. Marriage law has historically been a matter for the states, and the only case where the Supreme Court has invalidated a State law has been to keep a State from restricting marriage. (See Loving v. Virginia.)

So far, this is only one more nail in the coffin of DOMA, but there is only one more step available. If it is appealed to the Supreme Court, we will have to await a final decision.

One thing I find somewhat ironical is the stand of a lot of “conservative” columnists, who might in other cases cheer a Court's setting aside of a Federal law attempting to interfere with State prerogatives, but who take the other side here — even taking Pres. Obama to task for refusing to defend DOMA! But Pres. Obama is sworn to uphold the Constitution, and if he believes DOMA to be unconstitutional, he is doing exactly the right thing! (Suppose a “conservative” was in the White House, and a law under attack on constitutional grounds was one that conservatives thought to be unconstitutional. Should the President defend that kind of law too?)

"Defense of Marriage" -- how does it defend? And WHAT does it defend?

Opponents of same-sex marriage often couch their opposition in terms which imply that they are “defending” traditional marriage — in fact, one piece of anti-gay legislation has been entitled the “Defense of Marriage Act.” But how can they make this claim? I simply do not understand how expanding the right of marriage to same-sex couples in any way negatively impacts the marriages of opposite-sex couples. This is one point that has never been explained in any way that I can find.

Marriage has sometimes been tied to procreation, and it is true that science has not yet found a way to combine two sperm cells to create a new human being. But not every opposite-sex couple is capable of procreation either. I have never heard of an opposite-sex couple being denied a marriage license because the woman has had a hysterectomy, or the man a vasectomy; nor has any law been enacted that would restrict marriage to couples in which the woman has not yet reached menopause. So there is certainly no reason that lack of the ability to procreate can be cited as a reason to deny same-sex couples the right to marry.

I have held the opinion in the past that “civil unions are enough” — and I still think that this is so if a civil union carries all the privileges of a marriage. But in states like Virginia, those opposed to same-sex marriage also oppose civil-union legislation, so that, if the purpose of instituting civil unions is to quiet those who are upset with calling it a “marriage,” it has failed that task. Therefore, since no concessions can be obtained from the opposite side, pro-same-sex-marriage forces can hardly be faulted from seeking the whole deal. And once more I pose the question: “What are anti-gay-marriage forces ‘defending’?”

On the end of "Don't Ask, Don't Tell"

While my previous post was critical of the position taken by Dennis Sanders on his blog, I certainly concur with him in his celebrating the end of the military's "Don't Ask, Don't Tell" policy. Of course, as a publicly declared gay man, Sanders has more reason to celebrate it than many other people, but I think that all people who believe in the concept of equal rights should be happy in this — but yet it is not quite a total victory for equal rights. As long as the ironically mistitled "Defense of Marriage Act" is still on the books, gay military personnel cannot provide their spouses with the same benefits that straight ones can. However, that bill will hopefully be declared unconstitutional — the Obama administration has refused to defend it, one of the few things this president has done right.

It is a good feeling to see pictures like the Navy lieutenant who went up to Vermont to marry his partner. It will be interesting to see the outcome of legal cases where expelled gay ex-servicemen and -women are suing to get equal treatment (they were only granted half the standard severance pay, for example).

I can't really see the point of view of people who want to be in the military — I did everything I could to ensure I was not drafted, back when I was called! — but certainly, if someone wants to be there, a simple concern for equality has to say that this is a positive step.

Strange reasoning on DOMA

There are hearings going on in the Senate Judiciary Committee about repealing the unfortunately-named "Defense of Marriage Act." And the people opposed to this have brought forth an argument that, on its face, looks reasonable: for example, Rep. Steve King, Republican of Iowa, cited a 1947 Supreme Court case that declared, "Marriage and procreation are fundamental to the very existence and survival of the race."

If same-sex marriages are to be denied because they cannot procreate, however, why are marriages not immediately annulled when the wife gets a hysterectomy? Or when the husband gets a vasectomy? Why are postmenopausal women allowed to marry?

When the opponents of same-sex marriage explain why they oppose it, but not marriage of a man and a woman where a hysterectomy, a vasectomy, or simply menopause has occurred, then I'll believe their argument. Until then, it is clear that they are simply trying to impose their idea of morality upon others.

Is President Obama really pro-gay-rights?

A reader named William Hart posted a comment to yesterday's post. In it he expresses the opinion that President Obama should be re-elected in 2012 to ensure progress in gay rights. I think Mr. Hart is totally misinformed, and I think that more than a response to a comment is called for, so I'm making a full post.

President Obama talks the gay rights line. But has he done anything he could to further the cause of gay rights? On Jan. 20, 2009 he became President. That very day he could have issued an executive order repealing "Don't Ask, Don't Tell." He could have done so at any time since that day — but he has not. It took a court order to repeal DADT.

True, earlier this year he (or his Attorney General, but this is really the same thing) said he will cease fighting to uphold the "Defense of Marriage Act." But it took him two years to get to this point. Why did the Obama Administration fight to uphold DOMA for the first two years of its existence?

Among the people fighting to replace President Obama, the most anti-gay are probably Michele Bachmann and Rick Santorum. Does anyone really think that Barack Obama will speed the progress of gay rights any more than Bachmann or Santorum? What might he do to help -- and why hasn't he done it already? Please answer, in specifics.

Yes, criticize Pres. Obama when he deserves it. But this isn't such a case!

There is a family of newspapers all called "The Examiner," published in various places around the nation, under a common ownership. One of those places is Washington, D. C., and since I live in the Washington suburbs, I get to see that edition of the Examiner regularly, without going online, though the columns appearing there do appear online, so I can link to them. The paper is pretty uniformly conservative, which means I usually agree with them on economic issues and disagree with them on social issues. And today, I saw a column on one of those social issues, and I feel I need to comment on it.

One of their regular columnists is Hugh Hewitt, and his column appeared today, under the title: "Time for government attorneys to stand up to Obama". And although some of the points that Hewitt made have some merit, Hewitt, annoyingly, said:

This president told his DOJ to refuse to defend a federal statute that has never been questioned by any federal appellate court, much less by the Supreme Court, the Defense of Marriage Act.

Now, the way I understand our Constitutional system, when no court has even ruled on a law, and perhaps even up until the Supreme Court rules on it, anyone, certainly including the President, has a right to decide whether he believes that law is constitutional. And Hewitt specifically states that DOMA "has never been questioned by any federal appellate court, much less by the Supreme Court." The way I read the Constitution, this means its constitutionality is open to each American's interpretation. And, since President Obama has sworn to "preserve, protect and defend the Constitution of the United States," if he deems some act of Congress to be unconstitutional, it is acting within the spirit and letter of that oath to refuse to defend it.

I am sure Mr. Hewitt does not read this blog. I wish he did, so I could ask him pointblank: Suppose you were President of the United States, and Congress passed a bill you thought unconstitutional. Would you feel bound to defend it in court?

Are there any readers of this blog whe can make a case for Hewitt having any case there? Does anyone feel there is any compulsion under the Constitution for a President to try to defend an act that he believes to be unconstitutional? I'd really love to see any reason that Hewitt might consider to justify his condemnation of President Obama on these grounds.

The problem with the legal profession

The legal profession is the only one where people have to be on the side of evil. A man may be accused of a crime, and until his trial is over, he deserves a defense and the State deserves a prosecution, regardless of what the truth is; even if the prosecutor seriously believes the accused is innocent, it is his job to try to prove him guilty, and even if the defense attorney is truly convinced of his client's guilt, it is incumbent on him to try to convince the judge and jury of the opposite. Among other things, that is why I could never be a lawyer; you really need to be able to persuade a court that black is white, whether you believe it or not.

And this view of the legal profession is one thing that colors the story about Paul Clement and the "Defense of Marriage Act." While I think that Speaker of the House John Boehner is mistaken in hiring Clement to defend the constitutionality of the act, there is a presumption that if you need a lawyer, you should be able to get one, to defend any proposition. And in that sense, Paul Clement was, as Attorney General Eric Holder himself said, "doing what lawyers do." And so Clement cannot really be criticized for taking on the case.

But the law firm that Clement had been working in, King & Spalding, felt, justifiably, that the case was one with which they did not wish to be associated. Thus, King & Spalding withdrew from the case, and Clement resigned from King & Spalding, joining another law firm so he could continue to serve as Boehner's attorney in this case.

In a sense, the whole problem is the nature of the legal profession. King & Spalding did not want to be considered anti-gay-rights, but Clement felt that the pro-DOMA side needed to have his services as an attorney, and thus the result. One can deeply hope Clement loses his case, without criticizing him for acting as he did. And that it qualifies as "doing what lawyers do" is why I think that lawyers are people that have just a whiff of evil about them as a profession.

Obama and the DOMA

Supposedly, Pres. Obama is for gay rights. But he has been very slow to take any actions that would prove it. But news has come out today of a change for the better. A New York Times report entitled "U.S., in Shift, Sees Marriage Act as Violation of Gay Rights" announced that "President Obama, in a major legal policy shift, has directed the Justice Department to stop defending the Defense of Marriage Act — the 1996 law that bars federal recognition of same-sex marriages — against lawsuits challenging it as unconstitutional."

I have said before that when Pres. Obama does something right, I will give him the credit it is due. And this is clearly in this category. But my only question is, "What took you so long?" After all, Obama has been President for over two years. If he agreed that DOMA was unconstitutional, shouldn't this have been his position from the start?

What will the Supreme Court do?

It looks as though there are going to be some interesting issues before the Supreme Court in the next year or so. There are the three gay marriage cases (Perry v. Schwarzenegger, challenging California's Prop. 8, and Gil v. Office of Personnel Management and Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, two Massachusetts challenges of the federal Defense of Marriage Act), Ken Cuccinelli (Virginia attorney general)'s challenge to the individual mandate in the Obama health care law, and the Obama administration's challenge to the Arizona anti-illegal-immigration law. Quite a bunch of controversial cases, and it will be interesting to see what the Supreme Court does with them!

It is hard to predict. The California gay msrriage case, for example, had a conservative lawyer on the team representing the pro-gay-rights side. And there are all sorts of issues involved in all these cases, many of which have not been before the Supreme Court before. And of course, the Court has some new justices: Sonia Sotomayor and Elena Kagan, without much of a judicial history. We just have to sit and wait.