The Bloomberg headline on its “View”, a section of the web-paper that operates roughly the same as an ordinary fish-wrap newspaper’s editorial column devoted to issuing its own opinions, explained the moment as The Supreme Court’s Chance to Make History. The Best of the Web in the Wall Street Journal dubbed its excruciatingly dense column on the matter the Tenth Situation, alluding to the Tenth Amendment, which reserves to the states all those powers not specifically granted to the federal government.
The Supreme Court has granted certiorari to two gay marriage cases. One is a challenge to the constitutionality of the Defense of Marriage Act passed by the federal government in 1996. The other is a challenge to a recently passed amendment to California’s state constitution defining marriage as the union of a man and woman. In the latter case, Hollingsworth v. Perry (Perry v. Brown in the lower court), The Ninth Circuit Court of Appeals found for the plaintiffs, and threw out the amendment as federally unconstitutional. Both cases are likely to be heard in March.
There is absolutely no reason to bore you with the legal reasoning which might be plucked from the back shelf of the law library by the clerks writing the justices’ opinions, because neither case has anything at all to do with law, but has everything to do with politics. To be sure, there will be clever legal rationalizations employed to justify whichever way the Court rules, but it will only be window dressing. The Constitution is utterly silent, and has been for all of its over two hundred year history, on the question of what exactly constitutes a permissible form of the particular life, business and (occasionally) sexual partnership known as marriage. But the Constitution does have something to say about federalism, which is the only valid basis for the Court’s adjudication.
The Court, in taking up these cases, is grasping for relevancy. There are very few true constitutional questions—questions where a law or some behavior impacts a matter directly covered by the plain words of the document, and in those rare few constitutional cases there are, the Court has lately proved too spineless to get involved.
For example, the Court has tacitly endorsed the extrajudicial killings of US citizens on the orders of the President, by refusing to hear cases objecting to the practice. If ever there were a practice prohibited by the US Constitution, it is the killing, with absolutely no modicum of due process, of US citizens by its government. The Fifth Amendment alone is all that is necessary to understand the unconstitutionality of the practice. And the principle of judicial review conjured by Justice Marshall those many years ago was intended to provide for judgment in exactly this sort of situation—where one branch of the federal government is not following the precepts of the constitutional covenant to which it is bound.
Yet the Court, being nowadays a political, not a legal body, stands silently by. The Court knows which way the political winds blow, and therefore knows the howls of derision that would erupt if it prohibited that which is plainly prohibited by the US Constitution, because even as disgustingly pathetic and stupid as it seems, American citizens have no apparent qualms in allowing their President to assassinate them, just so long as they continue to believe in the fantasy that the “them” being assassinated doesn’t belong to “us”, i.e., is not a member of their subgroup of citizenry, but is instead the member of another one, and they are willing to grant to one man the vast power to decide and distinguish properly between and among the citizens who should be assassinated and those who shouldn’t.
(But enough of that. Because the practice pretty much epitomizes what disgusts me about the gathering statism in American politics, I have a tough time letting it go. But this is a piece about gay marriage and its constitutional implications.)
I must admit to being rather inept at predicting political outcomes, the ruling on the constitutionality of gay marriage being of the same sort of outcome. I predicted Obama would lose reelection, because the latent racism which elected him the first time would backlash. I got the trend correct, as the race was much closer than before, and because fewer whites voted for Obama, but the magnitude wrong. There weren’t enough whites to overcome the Hispanic landslide. Obama was reelected due to racialism, just as before.
I predicted the Supreme Court would overturn the Affordable Care Act (“Obamacare”) on its individual mandate that all must purchase insurance or pay a “penalty”. I was wrong there as well. Justice Roberts did a masterful job of protecting the Court’s unpredictability, and its pretensions to reason and not politics, by ruling that the individual mandate was unconstitutional as violating the Commerce Clause, while upholding it as a permissible exercise of the general, and much broader, power to levy taxes. My analysis was correct, in that the Court deliberately interposed itself in the debate, which had no real constitutional dimension, in order to burnish its relevancy. I was again wrong in the magnitude of how desperately they wished to be relevant. I figured they took the case to revivify their power base, developed during the Warren Court, and disastrously overreached and substantially destroyed by Roe v Wade in the early seventies, as protectors of individuals and groups against invidious government oppression. But they weren’t brazen enough to take things as far as I expected.
Now the Court will weigh in on the gay marriage debate, again it seems, in a pathetic attempt at making itself relevant. I will refrain from predictions this time. But I will offer what I think they should do.
First, they should strike down as unconstitutional the Defense of Marriage Act, relying, as James Taranto of WSJ’s The Best of the Web argued, that it impermissibly treads on matters reserved for the states in the general framework of federalism, specifically by abrogating rights reserved to the states in the Tenth Amendment. The federal government has no interest in defining marriage for the states, and the Court should say as much. Marriage is not now, and never has been, a federal government entity or issue. The Court should go further, however, and provide that the federal government, and all its agencies, etc., is obligated to fully recognize whatever form the various states decide to recognize as permissible marriage arrangements, meaning for example, that a federal employee who has a legally recognizable marriage in any one of the fifty states also has a legally recognizable marriage in the federal system of employment benefits and obligations. In short, the Court should punch the issue back to the states. Which is what the Court should have done with abortion, but it is never too late to get the next thing right.
Following the reasoning, the Court should overturn the Ninth Circuit’s ruling that California’s amendment to its constitution providing that marriage is between a man and a woman is federally impermissible. But here, it should emphatically reinforce the principles of the Full Faith and Credit clause of the US Constitution, which provides that every state must render to all other states the Full Faith and Credit of their duly passed laws. In other words, the Court should say that a gay couple marrying in Vermont must be recognized as married by the state of Alabama, or anywhere else. This is important, because the lower courts have been all over the map on whether a gay marriage in one state must be legally recognized in others.
In fact, clearing up the mess of confusion over whether a state’s marriage laws must be recognized by another state is the only defensible reason for the Court to have taken these two cases. There is no constitutional question to be decided about gay marriage. The Constitution hasn’t, not even in its penumbra, anything to say about who is and who isn’t fit for marriage. Marriage is something which has always been the purview of the states. But the doctrine that each state must recognize the validity of every other state’s duly passed laws lies at the heart of the federalist system, as the Constitution explicitly provides.
Interestingly enough, my reasoning would have done the states of the Old Confederacy proud. A significant part of the slavery issue resolved to whether or not a free state had to recognize the property rights in human beings that slave states provided slaveowners. The issue had more historical heft than it was generally afforded. If a slave could gain his freedom by escaping to a free state, then the rather creaky system of half the Union enforcing laws that allowed slavery, with the other half actively trying to undermine those laws, was bound to fail. Leading up to the conflict, the slave states pressed the federal government to make the free states recognize property rights in human beings, much as many gay marriage advocates would like the Court to force the recognition of gay marriages wherever consummated. When Lincoln was elected, and it became clear federal help in enforcing slavery would not be forthcoming, South Carolina fired the first shots.
But a certain cohort of aggressively gay people would hate for the Court to effectively legalize gay marriage through federalism. They seek nothing less than full victimhood status. They would like nothing more than a new GBLT Affirmative Action program. An added benefit arising from a federalism-based ruling is that the question of whether homosexuality is a protected status or class is not even reached. Gays wouldn’t like it, but the Court wouldn’t leave them much to complain about.
Being gay may or may not be innate, but it is not readily discernible (such as might be said of being black), nor inherently relevant to any relationship except of that with the sexual partner. And gender discrimination, the crux of traditional marriage legislation, is a valid basis for discrimination in a great many contexts, as there are discrete and definable differences between men and women. It is not, for example, invidious gender discrimination to provide that women alone have the right to decide upon aborting their child. It is also the father’s child, but he can’t stop the mother from choosing to abort it. And why? Because the father has no womb. Discriminating on the basis of gender is sometimes quite reasonable. Discriminating on the basis of race never is (which is why Affirmative Action should be banned, and the Court’s cases on the matter are substantially unreadable, as the logic used to defend them is profoundly contorted and illegitimate). Discriminating on the basis of sexual orientation is practically impossible outside the context of marriage.
Discriminating on the basis of gender to preclude two people of the same gender from enjoying the benefits (?) of marriage is not clearly invidious. Reasonable minds can differ, which is precisely how the issue is playing out among the various states. The Court could go a long way towards diffusing the issue by simply providing that, while the federal government is not in the business of defining marriage, it is in the business of ensuring the various states respect each other’s laws. There are enough states where gay marriage is already legal that by doing so the Court would effectively extend the franchise to whomever sought it. Heterosexuals go to Vegas to get married, and the marriages thus conceived are as legally valid as any other. If the Court rules as I recommend, homosexuals could do substantially the same thing.
The gay marriage debate is the rare instance where the Supreme Court has a social role to play, but not the one envisioned by the ones clamoring for protected status. If it rules humbly and solely within the context of federalism, i.e., if it sticks to that which is legitimately within its purview, it has a chance to regain some of the respect and power it lost through its abortion rulings. The Court won’t “make history”, at least not in the context that Bloomberg and other gay activists envision in doing so, except perhaps in the sense that it for once did what courts of its tenor were designed to do.