The Inevitable March Towards Universal Gay Marriage Continues

A Measured Set of Supreme Court Decisions, Public Opinion Ahead of Law
The supreme court, in a pair of twin rulings last week, came down modestly on the side of gay rights but stopped short of overriding public opinion in two important ways of advancing a political agenda from the bench.

The first ruling, by a 5-4 majority (which seems to be the norm for the last 30 years in decisions of a controversial nature) struck down the provision of the Defense of Marriage Act that defined marriage as between a man and a woman for federal purposes.  This means that legally married gay couples in states that permit gay marriage now have access to federal deductions and benefits associated with being married, rights previous denied to them under DOMA.  The reasoning of the court was two-fold - first, a traditional conservative argument around federalism that essentially stated that definition of marriage has been historically the province of states and that on 10th amendment grounds there was no enumerated power for the federal government to overrule state judgement on that issue.  Interestingly it was 4 liberal judges joined by moderate opinion-writer Anthony Kennedy that overruled 4 conservatives on what would seem to be a judicially conservative view but for the social politics around gay rights.

The tenth amendment text in question is as follows:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The second reason given by Kennedy's opinion, and perhaps the more intriguing one, was the notion that the clause in question violated the equal protection principle articulated in the 14th amendment.  This is a fascinating argument, as the 14th amendment is clearly targeted at state laws.  Text is below:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The ruling seems contradictory.  The ruling struck down a federal law, and, believe it or not, there is nothing in the constitution that expressly forbids a federal law that does not protect citizens equally.  There are constitutional protections that prohibit voting rights discrimination on the basis of race (15th amendment) and that prohibit slavery (13th amendment) and specifically enumerated rights that cannot be denied by the federal government (articulated in the Bill of Rights, the first 10 amendments), but nothing that prohibits a federal law from unequal treatment.  What would have made far more sense than striking down the federal law under an equal protection argument would have been to strike down state laws prohibiting gay marriage as an equal protection violation imposed by the states.

The 10th amendment violation would have been sufficient to strike down the provision in question.  That Kennedy chose to reference equal protection likely foreshadows a building majority on the court around the equal protection of gay marriage equality itself.  But the court is taking a measured pace - by passing on the opportunity to make a national ruling relative to California prop 8.  The court let stand a lower court ruling striking down the prohibition on gay marriage in California by ruling that the state Republicans making the appeal did not have standing to appeal - an intellectually devoid argument since it chose to rule in the DOMA case under very similar circumstances (the Republicans defended that case as well since the Obama administration chose not to defend the law), but a clever dodge nonetheless.  This leaves the overall question of the constitutionality of gay marriage for another year and another court, but the 14th amendment argument in the DOMA ruling clearly projects a likely outcome when that day comes.  Kennedy simply decided to let the court of public opinion form a little more before the Supreme Court intervenes.

And the court of public opinion is moving.  By a massive majority, the American public now favors gay marriage.  A just-released Gallup poll shows national support at 55% for and 40% opposed, an epic turn in the past 17 years since Gallup first started polling the issue, when support was at less than half that level.  55% is far more support than any Presidential candidate has received since Ronald Reagan in 1984.  In other words, 55%-40% is a landslide.  And the opponents are dying.  The only demographic group (unless you count conservatives or Republicans as their own "demographic group") that still opposes gay marriage are those 65 and over, and only 51% of seniors now oppose it.

It is highly likely that we will see gay marriage in every state outside of the south (where majority opposition still exists) in the next 5 years.

Politicians in both parties had better get on board or history will remember them harshly.  This is not a Republican/Democratic issue, as bipartisan support for gay marriage bills in places like New York State has proved.  It is a right/wrong issue.

The one thing that surprised me about the Supreme Court ruling was that the court elected NOT to strike down the provision of DOMA that permits states to not recognize gay marriages from other states.  This creates a legal and administrative mess, is unprecedented in US marriage law (states recognize marriages of first cousins from other states, of minors from other states and so on) and is black letter unconstitutional, in my opinion.  The relevant section of article 4, section 1 of the constitution is below:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.  And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Perhaps this is more judicial restraint in letting the political process play out.  But it is wrong on the law.

If you like this site, tell your friends.

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.

The Very Active 111th Congress, The Highly Questionable Constitutionality of the Defense of Marriage Act

The End of 2 Whirlwind Years
It's become a more or less accepted truth in liberal circles that the 111th Congress underachieved. They failed to get immigration reform done. The health care bill that ultimately passed contained no public option. Cap and trade didn't happen. Those are 3 big expectations of liberals that remain unmet.

To Conservatives, the 111th Congress was a haven socialism, passing a massive increase in government spending through the stimulus package and a huge government takeover of Health Care.

Of course, in the end, the actions of the 111th Congress were neither socialist (the government didn't take over health care, the stimulus was one third tax cuts and all the spending end next year) or inactive (big pieces of legislation passed, more on that later.)

Like it or not, President Obama owns the 111th Congress. It more or less mirrored the first 2 years of his Presidency and in large measure reflected his legislative and executive priorities.

According to , 322 bills became law during the 111th Congress, 321 of them under Obama's watch (1, an act relating to executive compensation was signed by President George W. Bush prior to Obama assuming office - this is possible as Congress convenes on January 5th and the Presidential inauguration doesn't take place until over 2 weeks later.) Of course, many of the bills were inconsequential and non-controversial, such as the ever-present fun of naming post offices and government buildings. But, below is a brief review of the very meaningful legislation that became law over the past two years:

Lilly Ledbetter Fair Pay Act - a major change in equal employment law that removed a restrictive statute of limitations on civil claims involving unequal pay. The act was named for Lilly Ledbetter, a woman who discovered after 20 years of work that she had been consistently underpaid versus her male peers but was ineligible to seek redress under the prior statute.

SCHIP Expansion - this bill expanded children's health insurance to 4 million additional children in poverty and was paid for with an increased in the federal cigarette tax from 34 cents to 101 cents per pack.

American Recovery and Reinvestment Act - the famous economic stimulus bill contained $787 billion in stimulus funds, approximately one third through tax cuts and two thirds through spending which was more or less equally divided between infrastructure projects and temporary entitlement expansions.

CARD Act - a bill that regulates consumer financial arrangements, requiring disclosure of fees by credit card issues, limiting the use of so-called "teaser" rates and minimizing the penalties that can be made for an infrequent late payment.

Smoking Prevention and Tobacco Control Act - gave the FDA authority to regulate cigarettes and their contents, including prohibiting the use of "light" in cigarette labeling, forbidding flavored cigarettes, further restricting marketing efforts by tobacco makers and expanded and more explicit warning labels on packs.

HIRE Act - a much smaller stimulus bill than the ARRA, it provided modest tax incentives for businesses to hire unemployed persons.

Patient Protection and Affordable Care Act / Health Care Reconciliation Act - a series of 2 bills (so divided because of legislative sausage making to enable passage of the controversial legislation) that requires everyone to have health insurance or pay a penalty by 2014, sets up insurance exchanges, removes tax benefits for high benefit employer provided plans, prohibits exclusion from coverage based on pre-existing conditions and levies a variety of smaller taxes, including one on sun tan parlors.

Note: Contained in the reconciliation measure was an unrelated provision that essentially federalized the handling of student loans.

Prevent All Cigarette Trafficking Act - outlawed shipment of cigarettes via the US Postal Service, effectively cutting off a source of business for Indian Casinos, that had made a business out of shipping cigarettes from low-tax locations on reservations to locations in high tax states.

Wall Street Reform and Consumer Protection Act - made major changes to the regulation of financial institutions, including heightened disclosure and transparency requirements in the derivatives market, increased requirements for equity against futures bets, increased oversight to look for systematic risk and a new office of consumer protection.

Don't Ask Don't Tell Repeal - will allow gay Americans to openly serve in the military without any disciplinary consequences.

Tax Cut Extension Act - extended Bush-era tax rates through 2012 and implements a modified estate tax, that is higher than the zero rate in 2010, but significantly lower than the rates most of the past decade.

Two budgets (Fiscal 2009, which was overdue when the President took office and Fiscal 2010) plus funding a portion of Fiscal 2011 (until March 2011)

Senate Only Approval (by law/constitution)

A full slate of cabinet and sub-cabinet level appointments. Of course, this includes all the top level cabinet officers, but encompasses hundreds of other deputies and other Senate "advise and consent" sub-cabinet level positions.

Approval of 2 Supreme Court nominees, including Sonia Sotomayor, the first hispanic justice on the Supreme Court and third woman and Elena Kagan, the fourth woman on the supreme court (and rumored to be the first lesbian on the court, although arguably not the first LGBT member as previous member David Souter, who Sotomayor replaced, was widely rumored to be gay.) Additionally, the nomination of hundreds of lower-level judges were also approved.

START Treaty - a strategic nuclear arms reduction treaty with Russia which will reduce the number of strategic warheads in both countries from 2,200 to 1,500 over 10 years.

Taken in total, the 111th was among the most significant in US history in terms of shaping the future of the country. So, in total, I would say the conservatives are more right than liberals in terms of the amount of activity. Whether they are right on the merits of that activity is a matter of opinion.

There were some major holes in pressing national problems that were not addressed in the 111th congress. Three major issues stand out:

(1) Deficit Reduction Plan
The blue-ribbon commission headed by centrist Democrat Erskine Bowles and libertarian Republican Alan Simpson finally returned its set of recommendation after the election, but Congress has yet to take any sort of meaningful action to reduce the long-term, structural deficit the country faces, an issue that threatens to consume the economy over the next 10 years if not dealt with. Republicans have vowed this will be a top priority in the new House in 2011 and rightfully so. Let's hope the actions are more than window-dressing.

(2) Immigration Law
Illegal immigration continues, largely unabated. It has slowed from its peak in the mid-2000s, due in large part to the declining economy and reduced opportunities for employment, but there are still millions of illegal and undocumented workers across the United States, but obviously concentrated very heavily in the Southwestern states of California, Texas, Arizona and New Mexico. The 111th Congress basically took no action to remedy either the ongoing influx of undocumented workers or to deal with the legal status of those who are already here. Even the very modest DREAM Act, which sought to deal with the legal status of people brought here by their parents illegally as children failed to garner enough support to break a Senate filibuster. The GOP majority in the House has vowed to focus on enforcement first (i.e. stopping the flow) before addressing the legal status of those already there. This isn't the approach that I would advocate (comprehensive reform is clearly needed in my opinion), but any improvement in the situation would be better than nothing. I also think that focusing on border security is mid-guided and expensive; a far better and more cost-effective method of reducing illegal immigration would be to step up penalties and enforcement for hiring illegals, thus decreasing the incentive to come in the first place.

(3) Environmental Legislation
The last major piece of environmental legislation passed in this country was the Clean Air Act of 1991, signed by President George Herbert Walker Bush (yes, three Presidents ago) that instituted a cap and trade system on sulfur emissions and severely restricted the ability to build new coal-fired power plants without significant emissions recapture. Republicans in the House will have absolutely zero taste for going after the sweeping cap and trade plan that the House passed in the 111th but the Senate failed to act on (and it's highly unlikely such a bill could get through the Senate either, honestly.) There may be some common ground on issues such as reducing dependence on foreign oil...I continue to advocate for a revenue-neutral increase in the gasoline tax, a Republican idea that Democrats should embrace, but I haven't heard much discussion on such a bill being taken up next year.

So, there you have it, 2 meaty years in American political history where a lot happened. It would certainly surprise me if as much legislation happens in the 112th Congress, which will be far more politically divided. But, you never know.

Taking Aim at the Defense of Marriage Act
With Don't Ask Don't Tell soon to be a thing of the past, the obvious next frontier in the LGBT fight for equal rights will center around the issue of gay marriage. Let's first summarize where things stand legally.

At the state level,
5 states plus the District of Columbia have Gay Marriage - Massachusetts, Vermont, New Hampshire, Connecticut and Iowa
5 states have "Strong Civil Unions", civil unions that are essentially equal to marriage in all ways except the name - New Jersey, California, Washington, Oregon and Nevada
5 states have weaker civil unions, civil unions that afford only some of the legal protections of marriage - Hawaii, Maine, Maryland, Wisconsin, Colorado
35 states essentially have no legal protections whatsoever for gay couples

The fight for legality of gay marriage has largely occurred at the state level, with one major exception, the Defense of Marriage Act which was signed into law by President Bill Clinton in 1996. This law allows states to not recognize gay marriages performed in other states.

The law is a departure from how marriage has been handled in every other case. States have historically honored all other state's marriages. This includes variations in the law, including the legal age for marriage and laws concerning blood relatives marrying. For instance, if one state requires an age of 17 to marry, but another requires only age 16, the state requiring 17, by law must recognize a marriage performed at age 16 in the other state. Similarly, if one state prohibits first cousins from getting married, but another state allows it, the state with the prohibition must legally recognize a marriage between first cousins performed in the other state.

There is a fairly simple constitutional rationale for this legal recognition process. If two people are married in one state, but not married in another, it creates all sorts of thorny legal issues around division of property and legal rights. For instance, if a couple gets married in one state and vacations in another, it would be a legal mess if property division and medical decision rights did not transfer. This basic precedent was abandoned with DOMA.

I strongly question DOMA's constitutionality. This is not a liberal expansive interpretation of the constitution, it is a quite literal one. Here is the text I cite, from Section 1 of Article 4 of the constitution:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

The full faith and credit clause is very clear...public acts and judicial proceedings that occur in one state must be recognized in other states. Gay marriage is EXACTLY the sort of situation that this clause was designed for. It is both a public act (a legal, public contract, sanctioned by the state government) and, in almost all cases a judicial proceeding (marriages in most states must be performed by a recognized agent of the state...hence the phrase "by the power vested in my by the State of xxx, I pronounce you husband and wife") Whether this case makes it to the Supreme Court or not remains to be seen, but I certainly would like to see conservatives, who have long argued for "strict constructionism", reading the constitution for exactly what it says, explain how the DOMA doesn't clearly overstep the authority provided in the constitution.

Repealing DOMA would be a game-changer for gay marriage, because, in effect, were DOMA repealed, gay marriage would be legal across the US. While only 5 states would still perform the marriages, any gay couple could then go to those 5 states and have their marriage legally recognized across the US.

Vice-President Joe Biden stated in an interview over the weekend that he viewed gay marriage as "inevitable". President Obama, at his last press conference after the lame duck Congress, said his views on gay marriage were "constantly evolving". Both have supported strong civil unions but opposed gay marriage in the past, but have opposed the Defense of Marriage Act. They are both late to the game, but public support from them for gay marriage would be a big boon. And the Supreme Court doing the right thing legally would be an even bigger boon.

A Supreme Court reversal of the DOMA would not doubt prompt an effort to amend the constitution in a way to prohibit federal recognition of gay marriage. That is fine and is a debate worth having. It is also a debate that I suspect that opponents of gay marriage would lose.

If you like this site, tell your friends.