President Obama continues to evolve in the direction of greater candor on same-sex marriage. Until last May he claimed to oppose it. Then he said he had changed his mind and now supported it, but continued to believe that states should be able to go their own way on the issue. Now his administration has filed a legal brief saying that the Supreme Court should strike down the California law, ratified by referendum in 2008, that defines marriage as the union of a man and a woman. The position Obama took until the end of February 2013, in other words, he now holds to be unconstitutional. The theory is that California’s definition of marriage violates the Fourteenth Amendment by discriminating against gays and lesbians. Governments recognize marriage, however, because of their interest in stabilizing those relationships that can generate children. Many other kinds of relationships, whatever the sexual orientations of the participants, receive no official recognition. It is certainly possible to hold that marriage should be seen as an emotional union with a sexual element but no intrinsic link to procreation. In that case the exclusion of same-sex couples would be arbitrary. The Fourteenth Amendment, however, does not mandate that view. That’s why nobody claimed that it did for almost its entire history, and not even the Obama administration did until late February.
Justice Antonin Scalia was roundly criticized for saying during oral arguments that the Voting Rights Act had been reauthorized with almost no debate because it had become a “racial entitlement.” He had at the very least committed a faux pas, according to the coverage, and at worst said something offensive. The law requires legislative districts to be drawn so as to maximize the likely number of black and Hispanic elected officials, which is to say that it entitles racial groups to seats. A desire to let the act expire or to modify it substantially is treated as an attack on blacks and Hispanics, which is to say that as racial groups they are entitled to its continuation. None of this, of course, establishes the unconstitutionality of the legislation (and Scalia did not say it did). Scalia’s point about the climate of debate surrounding the issue was amply demonstrated by the reaction to his making it.
Ben Bernanke testified before Congress, and Republicans grilled him for what Senator Bob Corker (R., Tenn.) called his “dovish” policies on inflation. Bernanke pointed out that inflation has run at an average of 2 percent on his watch, lower than that under almost any postwar Fed chairman. Not since the mid-1960s have prices been more stable. The Republicans should have adopted a different line of criticism. The Fed had it within its power to keep nominal spending growing at a stable rate, which would have helped to steady the economy. Instead, over the last five years, it first let nominal spending drop at the fastest rate since 1938 and then kept it growing very slowly. The results have been a sharp recession, a weak recovery, and a lack of certainty about the path of monetary policy. Inflation is not the only way a central bank can fail.
The Supreme Court has rejected a lawsuit by Amnesty International and an array of attorneys, journalists, labor leaders, and, of course, “human-rights activists,” who claimed to be harmed by the mere possibility that their communications with suspected terrorists might be monitored under the Foreign Intelligence Surveillance Act. FISA, you may recall, was amended in 2008 after a fierce debate over the Bush administration’s warrantless-surveillance program, about which the Left squawked despite considerable precedent supporting its constitutionality. (This was back in the pre-Obama days, before leftists realized that warrantless killing was kosher.) The justices threw out the suit on the grounds that FISA, which requires court approval for the surveillance of foreign agents, satisfies Fourth Amendment concerns, and that the activists lacked standing to object to classified surveillance they could only speculate might be happening. The disturbing part of the decision is that it should have been a slam dunk, not the 5–4 cliffhanger it became when the Court’s bloc of four left-wing jurists sided with Amnesty International. We are that close to an Obama Court.