It’s an odd thing: On the one hand, many folks on the Left (and many other supporters of same-sex marriage) maintain that only an irrational bigot could fail to accept the (absurd) proposition that the Constitution is properly interpreted as conferring a right to same-sex marriage. On the other hand, these same folks engage in extraordinary gymnastics to deny the concrete evidence that various of Obama’s judicial nominees favor invention of a federal constitutional right to same-sex marriage.
Consider, for example, controversial Ninth Circuit nominee Goodwin Liu, whose second confirmation hearing takes place tomorrow. As I documented a year ago, Liu was one of 17 professors of constitutional law in California who in 2007 submitted an amicus brief to the California supreme court arguing that California’s definition of marriage as between a man and a woman violated the equal-protection guarantees of the state constitution. The brief makes clear that Liu and the other amici also believe that California’s definition of marriage violates the equal-protection guarantee of the federal Constitution. As the brief puts it (p. 3), “amici rely upon their expertise in federal constitutional law to illustrate their arguments because [the California supreme court’s] analytic methodology for interpreting the Constitution so often parallels analysis by courts construing the federal Constitution” and because the state constitution indeed “has often been construed to provide broader protection than its federal counterpart.” In other words, the brief argues that because California’s definition of marriage violates federal equal-protection principles, it follows that it violates the state Constitution.
Liu and the other amici also incorporate by reference (p. 12) the argument that California’s traditional marriage law “infringes impermissibly on the fundamental right to marry,” “discriminates on the basis of sex and sexual orientation,” and “offends both simultaneously, since the two guarantees, contained in a single sentence of the California as well as the federal constitutions, are mutually reinforcing.” (Emphasis added.)
In short, it is clear that Liu has embraced the position that there is a federal constitutional right to same-sex marriage.
That fact hasn’t kept Liu’s supporters from attempting to deny or obscure the obvious (as I discuss in the paragraph labeled “First” in this post). Nor, more remarkably and more scandalously, did it deter Liu from doing so in his written responses to post-hearing questions last year (as I discuss in point 3 of this post).
With his decision not to defend DOMA, President Obama has amply demonstrated what his allies knew all along—that his professed opposition to same-sex marriage during the presidential campaign was empty posturing designed to fool gullible voters and to get himself elected. Goodwin Liu is now trying to fool senators and get himself appointed to the Ninth Circuit, where he would (among countless opportunities for mischief) take part in deciding whether to review en banc the pending anti-Prop 8 case.
(As I have demonstrated, Liu’s position—and his evasiveness—on this issue are only one small part of a broader pattern that demonstrates his manifest unfitness for judicial office.)
Update: I see that, in response to my post, one of Liu’s supporters claims that a letter from Akhil Amar and Ken Starr “thoroughly debunks [my] point.” I disposed of this inanity nearly a year ago. (I’ll just add here that the inane claim doesn’t even involve Liu’s views on the federal constitutional status of same-sex marriage.)