Last Wednesday I posted a letter to The Wall Street Journal in which I made three Constitutional arguments in defense of marriage equality. The first was one I have been making for over a decade, namely, that the Defense of Marriage Act (“DOMA”) is an unconstitutional usurpation of states’ near-exclusive jurisdiction in matters of family law, including marriage. (I have inserted the text of DOMA in the End Note.)
Lo and behold, the following day the First Circuit Court of Appeals issued its opinion affirming the trial court’s conclusion that Section 3 of DOMA is indeed unconstitutional as a violation of federalist principles. As I shall explain, this was a no-brainer that everyone should agree with. I also anticipate that the Supreme Court will grant certiorari, and it will be upheld, probably 8-1, with Scalia dissenting. I also want to note that the trial court judge is a Republican appointed by Nixon, and the First Circuit held unanimously, with two of the judges also being Republican.
This piece will have four parts; 1) why everyone (and I do mean everyone) should happy about the decision, even if for different reasons, 2) what we can glean from the three presidential candidates’ Constitutional principles since all three have weighed in on DOMA and its constitutionality, 3) since many of my readers are strong defenders of the Constitution, I will review the Equal Protection arguments for those who don’t know how EP analysis works, and 4) I will review the legal basis for overturning DOMA on federalist grounds.
Why Everyone Should Applaud the First Circuit
If you truly support and defend the Constitution, there should be times when you agree with a Court decision, even if you aren’t happy about the result as a policy matter. Free Speech cases afford plenty of examples. For conservatives, this should be one of those times.
But, as I’ve said before, many conservatives (like their liberal brethren) support the Constitution except for when they don’t. Thursday’s release of the First Circuit’s opinion is case-in-point as many conservative groups came unglued, including Louisiana Congressman Jeff Landry, who made the worn-out complaint of “judicial activism.”
If you read the opinion you will find that the trial court found—and the First Circuit affirmed—that Section 3 of DOMA violates federalist principles by providing a broadly applicable definition of marriage. (The court did not say that the federal government cannot define marriage in discrete sections of legislation.) The First Circuit quoted the Supreme Court on page 20:
The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.
Any conservative should rejoice at language like this! The first and best defense against the continued explosion of the size and scope of our federal government is for courts to strictly enforce federalist principles against the federal government. We need more rulings like Thursday’s, not fewer, and conservative outrage over this case is cutting off one’s nose to spite the face.
Here is the best way to describe the holding. The federal government provides many benefits to married couples, including some tax breaks and Social Security survivor benefits. Through Section 3 of DOMA the federal government tells states who are and who are not married for deciding who can receive these benefits. No, no, no! The states tell the federal government who is married, not the other way around!
So I’ll return to my previous point that a true Constitutionalist must accept that there will be times when you must accept that Courts have interpreted the Constitution correctly even if you don’t like the outcome as a policy matter. If you judge every case by the policy result, you’re not a defender of the Constitution.
As a case-in-point, recall the back and forth between Rick Santorum and Ron Paul during the presidential debates on abortion. Santorum attempted to read into Dr. Paul’s position on abortion based on his legislative record. Dr. Paul explained that his votes were guided by his belief that abortion is a state issue, even though he is pro-life. This befuddled Santorum, and showed he is not a Constitutionalist (and therefore is unqualified to be president), and Paul most definitely is a Constitutionalist.
Turning to liberals, they should actually be less enthusiastic about Thursday than conservatives because the Courts are continuing to reject the Equal Protection case for marriage equality. Additionally, many liberals do not believe in federalism, and dislike limitations on the scope of federal authority such as this. Nonetheless, liberals should be happy with the policy result, and will now move on to fighting the battle for marriage equality on a state-by-state basis, such as the case filed last week in Illinois.
And libertarians? Most of us agree the DOMA is violates federalist principles, but also agree that limiting marriages to heterosexual couples also violates the Equal Protection Clause. But then again, we libertarians tend to read far more limitations on governmental authority in the Constitution than conservatives or liberals.
The bottom line is that everyone should be happy with the First Circuit’s opinion in one way or another. Happiest of all should be conservatives, who had both the federalist and Equal Protection arguments go their way.
Just don’t tell that to the many conservatives who think the Constitution is “flexible” and they get to win on policy grounds every time….
The Presidential Candidates and DOMA
Because the issue of same sex marriage has been in the news a lot lately, and all three presidential candidates have weighed in on this issue with Constitutional arguments, it is a case study in their Constitutional principles, or lack thereof.
As a reminder, this is the oath of the office of president:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
Defending the Constitution is a core responsibility of the office of president. That presidents from both of the major parties have ignored their central duty over the years is a large part of the reason why our country is in the mess it’s in. In my opinion, the lack of coherent Constitutional principles disqualifies a candidate for the office. That is not to say they have to agree with judicial interpretation at every turn, or their principles cannot evolve, but they must have articulable Constitutional principles that they can explain and apply to any given situation. That is a requirement, in my opinion, for any presidential candidate.
This article will continue tomorrow, and will conclude on Wednesday, and is also posted at The Country Thinker. The remainder of the article will be posted there.