Bench Memos

Compare and Contrast

Who has better displayed fidelity to the ideals of our constitutional republic, the supporters of traditional marriage (formerly known simply as marriage) or the proponents of same-sex marriage? Consider the histories of DOMA and Prop 8:

In 1996, defenders of marriage respond to judicial mischief against marriage by drafting and proposing the Defense of Marriage Act. DOMA wins overwhelming majorities in both Houses of Congress—85 to 14 in the Senate and 342 to 67 in the House. Among its supporters are many strong advocates of gay rights, including President Clinton, who signs DOMA into law, and then-senator Joe Biden.

This modest measure merely reaffirms and makes crystal clear what Congress had always meant by the term marriage in provisions of federal law: a male-female union. DOMA doesn’t intrude at all on a state’s authority to regulate marriage under state law. It doesn’t nullify or prohibit any marriages, or in any other respect preempt the operation of state law. On the contrary, it leaves the states free to define, or redefine, marriage as they please.

Initial litigation attacks against DOMA fail. But then President Obama is elected. First, the Obama administration, with the complicity of then-Solicitor General Elena Kagan, actively sabotages its purported defense of DOMA. Then, on the flimsiest of pretexts, it completely abandons its duty to defend DOMA and aggressively attacks DOMA. (See Part IV of my House testimony on the “First” proposition and the remainder of it on the latter.) The Supreme Court ends up invalidating DOMA in an opinion by Justice Kennedy that, in the course of breaking new ground, smears supporters of DOMA as mean-spirited bigots. To top off the farce, Kagan provides the decisive fifth vote.

The battle for marriage in California displays a similar pattern. In 2000, California voters adopt Proposition 22 to affirm that marriage in California remains what it has always been—the union of a man and a woman. In May 2008, the state supreme court, in a novel opinion and by a 4-3 vote, strikes down Proposition 22 as supposedly violative of the state constitution. Marriage supporters respond with Prop 8, which the voters of California adopt in November 2008. Intense and vicious bullying of supporters of Prop 8 ensues.

Proponents of same-sex marriage then run to their favorite federal courthouse to challenge Prop 8 on federal constitutional grounds. They draw as the judge in the case Vaughn Walker, who proceeds to engage in what is probably the most egregious course of misconduct ever by a federal district judge (and who discloses only after his retirement from the bench that he is in a long-term same-sex relationship and thus was ruling on his own right to marry his same-sex partner). The Ninth Circuit ruling on appeal, which also holds Prop. 8 to be unconstitutional, is written by notorious liberal activist Stephen Reinhardt. Judge Reinhardt’s wife, Ramona Ripston, directed an ACLU affiliate that filed briefs in support of the Prop. 8 challengers in the same case and publicly rejoiced over Judge Walker’s ruling. Yet Judge Reinhardt somehow refuses to disqualify himself from deciding the appeal.

As reprehensible is the unprecedented refusal of California officials to defend Prop 8—a refusal that ultimately leads five members of the Supreme Court (including Kagan, the decisive vote once again) to rule that the Court has no jurisdiction over the case.

Now I of course understand that those who somehow believe that there is a never-before-recognized constitutional right to same-sex marriage will perceive supporters of marriage to be the unjust aggressors in these episodes. But I would hope that even they would acknowledge that supporters of marriage have pursued their objectives democratically and peacefully and, adhering to established constitutional principles (rather than imagined new ones), have ample cause to feel terribly cheated.

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