By Tony Montanaro
On February 23, President Obama managed to do an extremely effective end-run around the middle-of-the-field blocking that stands between his pro-homosexual “same sex marriage” agenda and the state of law and jurisprudence in the country. Obama told the Justice Dept. to stop offering arguments on two same-sex marriage cases: Pedersen v. OPM (2nd Circuit) and Windsor v. United States (1st Circuit). Each of these are challenges to Section 3 of the Defense of Marriage Act (DOMA), the federal law that says that for federal purposes, “marriage” means only a union between one man and one woman. While the President says that the Justice Dept. will continue to enforce the law, it will no longer defend its constitutionality in court. Justifying his former as well as current actions, Mr. Obama insists that although the former Justice Dept.'s defenses of the act, based on the “rational basis” standard, were reasonable, the proper testing standard is a higher level standard, such as the “compelling reason” standard, and it cannot pass that test.
While he couched the issue (using the Attorney General) as a limited legal one, make no mistake: this move, the entire point of this maneuver, if it stands, is to have the impact of removing all legal impediments to gay marriage. It may take a couple more years and a few more chess moves, but the intended results are as clear and nearly as certain as anything in politics can be: that there will be no federal impediment to gay “marriage”, and any state impediment that you could imagine will run into such enormous problems that almost all of the states will cave in. That’s the idea, at least.
What will happen without the administration defending the law, what is realistically foreseeable? Congress can defend the law in federal court without the Justice Dept. The Senate can send its own attorneys to defend it, but it takes a Senate resolution to do that, and given the current state of the Senate that might be difficult. The House can do it, either by having the Speaker choose to do so, or by a House resolution. Either way is probable at this stage. There is no way that the House will leave it up to chance, not after last November’s elections.
But without the Justice Department weighing in, it seems a virtual certainty that eventually one of the Circuits will say that Section 3 is unconstitutional. Then it will move to the Supremes, and they will almost certainly accept the case if there are competing Circuit results (they probably will even if there are no conflicting circuit results). At this moment, the broad thinking appears to be that the Supremes are roughly divided four and four on cultural issues like gay marriage, with Anthony Kennedy appearing to be a Belgian waffle. He will undoubtedly be called the “swing vote”, even though no one of the nine has any more vote than any other, and none can be the “deciding vote” without four others also playing into that same decision on the same side.
Nobody really knows how Kennedy will vote, but he not only voted with the majority in the Lawrence vs Texas case in 2003, he wrote that decision, striking down sodomy laws. That case set the stage for much of the movement “forward” by gays in the last eight years. It is hard to see how Kennedy could come up with a vote in favor of DOMA after that.
If the Supremes decide to strike down Section 3 of DOMA, Section 2 (that no state is required to uphold other states’ same-sex marriages) will quickly become a dead letter. For one thing, there is far too much controlled directly by federal law that the states cannot block: just for example, pension law (with survivor pensions for spouses) is federal. Health insurance law (at the moment, at least) is thoroughly wrapped up at the federal level. Any state that tries to be a hold-out will find its ability to retain any effective meaning to its resistance very problematic. If 80% of legal arrangements accept gay “marriage,” the remaining 20% will be on the defensive every moment of the day. And in fact it would not be long before a federal judge would strike down Section 2 as well, merely to give full effect to striking down Section 3, if not for its own sake.
Through Mr. Obama’s quite clever ploy, marriage and the family are under the most direct threat yet. Given the dynamics of the courts, there is a very high probability that Obama’s ploy will work. The only truly strong method to defeat this would be a constitutional amendment to defend traditional marriage. I don’t know whether we have thirty-four states ready to sign a pro-marriage amendment, but there is a minimal chance, at least. Conservatives saw this writing on the wall fifteen years ago, and spoke out vociferously after Lawrence, but we didn’t make a concerted effort at an amendment then, when it was more within reach. Is there any other way to block this?