Sunday, March 31, 2013

The Most Liberal Ever?, Why SCOTUS Should Strike Down DOMA But Uphold Prop 8

A Moderate By Any Other Name...
A conservative friend of mine, whose intellectual capabilities I respect greatly, was discussing potential 2016 nominees with me this week.

We started by debating the GOP potentials.  I was partial to candidates who had done actual governing, such as Bobby Jindal and Chris Christie.  He is not a Christie fan, feeling Christie is too moderate for his liking.  He does like Scott Walker and Mitch Daniels but was also bullish on Rand Paul and Marco Rubio, the former of which I think would be an utter disaster as a Presidential candidate (in spite of my respect for his recent principled stands) and the later of which I think is highly unproven as a leader.

Our discussion then turned to the Democratic side of the aisle.  We quickly agreed that if Hillary Clinton chooses to run, the nomination is hers to lose.  The more interesting scenario was if Hillary didn't decide to run in which case the field is fairly open to guys like Andrew Cuomo, Martin O'Malley, Joe Biden or even a dark horse like Kirsten Gillebrand.  I stated that I didn't see Biden as Presidential timber and that my concern with Cuomo and in particular O'Malley was that they were too liberal for a mainstream candidacy.

It is then that this thoughtful thinker said something that I think is absolutely astounding.  He stated "well, Obama got elected and it isn't like it is possible for someone to be more liberal than him."

This is a popular talking point in GOP circles, that President Obama is on an extreme liberal edge and is essentially a socialist or even less flattering terms like a "statist".  The amazing thing to me is that smart people actually believe that.

Sure President Obama did some things that are on the left hand side of the American political ledger.  He oversaw a stimulus package that received only 3 Republican votes.  He pushed for a universal healthcare plan that was universally opposed by Republicans.  And he sought higher tax rates on high income individuals.

But, let's be real.  The stimulus plan was supported by every Democrat in the Senate and by three Republicans, including non-socialists Susan Collins and Olympia Snowe.  While it may have been a left-of-center solution, it was hardly outside of the mainstream of American politics.  Liberals like Paul Krugman were aghast at how small the stimulus package was.

His health care plan, while opposed by the GOP and some conservative Democrats was far, far, short of the level of state involvement in health care in every other first world nation.  It was well short of single-payer solutions sought by liberals and was, in essence a plan architected by Republicans such as Bob Dole and Mitt Romney just a few years earlier.  Hardly the "most liberal" health care proposal ever.

On foreign policy, President Obama has essentially continued most of the policies of the Bush administration.  He sent more troops to Afghanistan, upped drone strikes, extended the Patriot Act and kept Gitmo open.  Hardly a liberal at all.

On social issues, President Obama has not sought federal funding for abortions, has only recently come out in favor of gay marriage (after a majority of the public already supported that view) and has only in his second term even spoken of gun control.

He has appointed an ex-Goldman Treasury Secretary, 2 Republican Secretaries of Defense and a Republican Secretary of Transportation.

Certainly President Obama is left of the Republicans who would run for the Presidency.  But he is more George Herbert Walker Bush than Karl Marx.  He didn't institute price controls like President Nixon (who also supported single-payer healthcare, incidentally.)  The tax rates he proposed were a full 50% lower than the top right under Dwight Eisenhower and his tax increases were proportionally a fraction of those signed by Herbert Walker Bush.

The most liberal ever?  Heck, he's hardly more liberal than half the US population.

The Right Way to Do Gay Marriage
Public opinion on gay marriage has turned.  9 states have gay marriage laws, with many others sure to follow in the next few years.  Advocates for gay marriage are hopeful that the Supreme Court this summer will strike down Proposition 8 in California as well as the Defense of Marriage Act and clear the way for gay marriage nationally.

I support striking down the Defense of Marriage Act.  The full faith and credit clause in Article IV, Section I of the US Constitution is very clear:
"Full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings, of every other state; and the legislature shall, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in another."

The meaning of this to me is clear - states must honor marriages granted in another.  The Defense of Marriage Act relegated gay marriage to a status where someone can be married in one state, but become unmarried when they cross state lines.  This is unprecedented in US laws - states that marry cousins must have their marriages honored by other states as do states that allow 13-year-olds to wed.  The reason for the full faith and credit clause is very simple - if contracts are allowed to be broken when one crosses state lines then contracts cease to have meaning.  The Supreme Court would be well justified in striking down DOMA.

Prop 8 is another issue.  By striking down Prop 8, the court would need to find that prohibiting gay marriage violates the equal protection clause of the constitution.  To do so would be to usurp the Democratic process and substitute their judgement for that of voters and elected officials.  While I favor gay marriage, it seems both unnecessary and unwise to supplant the Democratic process.  Public opinion has made gay marriage inevitable.  Interpreting the equal protection clause as requiring gay marriage would be to instill in it a meaning that was clearly never intended by those who wrote the 14th amendment.

Public acceptance of gay marriage will be stronger with a full public debate.  And striking down DOMA alone would ensure that gay people have a place to go to get married in a way that will be recognized.

Sometimes how you get to an outcome is as important as the outcome itself.  I feel this is the case with gay marriage.

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