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Free Liberal: Coordinating towards higher values

Free Liberal

Coordinating towards higher values

Gay Marriage is Coming: The Beginning of the End of DOMA

By Chuck Muth

Forget Massachusetts.

The court decision gay marriage opponents - and supporters - ought to REALLY be worried about is the one handed down in New York last week declaring gay marriage legal, a decision which surely will end up before the New York Supreme Court on appeal. That decision, more so than the one in Massachusetts, is likely to pave the way for overturning the Defense of Marriage Act (DOMA) - which states that one state need not recognize the gay marriages of another - and will present an arguably legitimate reason to pursue a constitutional ban on same-sex marriage.

And if folks can get beyond the moralistic gay-phobia arguments, a fascinating constitutional clash for the ages will then take place encompassing federalism, the practice of following Supreme Court precedent and the separation of powers. Although I've generally been hoping this issue would just go away - we really DO have bigger fish to fry - I'm now looking forward to it blowing up.

DISCLAIMER: I am neither an attorney nor a constitutional historian, so the following opinions are based on the observations of an amateur, everyday citizen...not an "expert." OK, with that out of the way here's why I think Manhattan Judge Doris Ling-Cohan's decision is more significant than the Massachusetts decision.

FIRST: Since the day the original decision legalizing gay marriage was handed down in Massachusetts, opponents have bemoaned the fact that a bunch of "unelected" judges "imposed" it on the people. Judge Ling-Cohan, however, was ELECTED to the bench by the people. She wasn't appointed. That eliminates a hugely effective PR argument from the anti-gay marriage side.

SECOND: The reasoning put forward by Judge Ling-Cohan plants the seeds for declaring DOMA unconstitutional. "It was only less than 40 years ago that the U.S. Supreme Court held that anti-miscegenation statutes, adopted to prevent marriages between persons solely on the basis of racial classification, violate the Constitution because they infringed on the freedom to marry a person of one's choice," she wrote.

Boy, does THAT ever open a can of constitutional worms. Consider...

First there's the conflict between state sovereignty vs. the federal government. Generally speaking, the Founders intended that the states be free to decide whatever they wanted in areas not specifically reserved to the federal government. But that changed significantly over the issue of whether or not some states could allow slavery while others were allowed to ban it.

Putting it simplistically, the Constitution was changed with the adoption of the 14th Amendment to allow the feds to overrule state laws which violated what were considered the natural rights of all citizens of the United States. All U.S. citizens were deemed to have a right to be free; therefore, state laws allowing slavery were null and void. Therefore, if marriage ends up being interpreted by the United States Supreme Court as a natural right due to all citizens of the United States, then state laws and constitutions banning gay marriage will be overturned and gay marriage will become the law of the land.

And that's why Judge Ling-Cohan's reference to miscegenation laws is so significant.

This reference dates back to the 1967 Supreme Court decision in Loving vs.
Virginia. The Lovings were an interracial Virginia couple who wanted to get married. But Virginia law banned blacks from marrying whites. So the Lovings went to Washington, DC, to tie the knot.

After getting a legal marriage in Washington, the couple returned to Virginia and were promptly indicted for violating the state's ban on interracial marriages. The trial judge found them guilty and sentenced them to one year in jail. He suspended the sentence; however, provided the couple leave Virginia and not return for 25 years.

In his opinion, the judge wrote: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

You can't help but notice how similar that wording is to what is often heard from many gay marriage opponents today.

Anyway, to make a long story short, the Lovings appealed the decision all the way up to the U.S. Supreme Court, which ultimately overturned the conviction declaring: "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the 'basic civil rights of man,'
fundamental to our very existence and survival."

So you see, the Supreme Court has already ruled that marriage is a "civil right," the sort of right in which the feds can overrule the states. And once one Supreme Court rules one way it's rare for a later Supreme Court to reverse it. It's been done, yes. But it's rare. However, there are two distinctions between inter-racial marriages and same-sex marriages which
*might* still allow the Supreme Court, despite the Loving precedent, to uphold DOMA.

The first is that the Lovings faced prison time for their action. While gays who get married in Massachusetts might not have their marriage recognized when they move back home to, say, Arkansas, at least Arkansas isn't threatening to throw them behind bars for doing so. In short, their physical liberty isn't imperiled.

Second, the court could possibly make a distinction between race and sexual preference. The court could rule that folks have no choice when it comes to what race they are born to, but that sexual preference IS a choice and, therefore, not subject to the same civil rights protections. I wouldn't bet the farm on it, but it's possible.

In any event, the New York decision based upon the Loving decision could well be the basis of a case which ultimately ends up before the Supremes over the constitutionality of DOMA. And when it does, my money is on the Court striking down DOMA based on the Loving precedent and the 14th Amendment.

Which brings us to the Federal Marriage Amendment (or whatever focus-grouped name they're now calling it).

If DOMA does get struck down, that will further inflame a large and vocal segment of the public and fuel congressional efforts to pass a constitutional amendment banning same-sex marriages. Unlike today, such an amendment, post-DOMA, could well garner the 2/3 vote needed in both houses of Congress to send the ban to the states. And just by looking at the number of states which passed gay marriage bans last November, there's a good shot that such an amendment could get the 3/5ths ratification needed to approve it.

Which brings up a potentially explosive conflict between the various powers of our government.

Let's say for a minute, just for argument's sake, that a constitutional amendment overturning the prohibition on slavery was passed out of Congress this year and subsequently ratified by the states despite a Supreme Court ruling that slavery was unconstitutional. Who wins? Do we re-impose slavery because the majority voted to do so via the constitutionally-proscribed amendment process? Along those same lines, if marriage is indeed deemed a natural right by the Supremes, can a majority of the people use their majority numbers to deny it to gays?

Which brings us to another potential constitutional quagmire being suggested by some in Congress: Court-stripping.

The idea here is for Congress to pass a law which strips the federal judiciary from even hearing a case on the constitutionality of DOMA under the power granted to Congress by Article III, Section 2 of the Constitution.
This gets to the heart of the separation of powers aspect of the government established by our Founders. The court is a CO-EQUAL branch of government, not a superior one. And some constitutional interpretations justifiably suggest that Congress does, in fact, have the power to limit what the federal courts can rule on.

But again, what if the issue is over what the Supreme Court considers a basic civil or natural right? Who would resolve such a stand-off between the judicial and legislative branches. What a lesson in constitutional government!

And that's why I'm now rooting for this issue to move forward. If the nation can look beyond the gay-bashing rhetoric from some quarters - granted, a big *if* - this issue poses serious constitutional questions which get at the heart of our system of government, as well as the whole matter of "natural rights" which the Founders were so passionate about. It's the kind of conversation our country, and especially our high school and college kids, SHOULD be having, as opposed to the trivial flapdoodle our elected representatives usually babble on about.

That being said, if DOMA is eventually struck down, should "state's rights"
supporters then back a constitutional marriage amendment? I still don't think so for at least two reasons.

First, the passionate opposition to gay marriage today is not unlike the passionate opposition to interracial marriage in 1967. Yet today, less than 40 years later, the vast majority of Americans couldn't give a whip if a black marries a white. Live and let live, most would say.

In much the same way, future generations of Americans won't give a whip about two gays getting married. Although it REALLY grates on a lot of today's over-40 crowd, it's just not an issue for the younger generation. And as Founding Father Thomas Paine warned, one generation shouldn't try to rule another generation from the grave. Putting a permanent ban on gay marriage into the Constitution is an effort to do just that.

Equally important, I think, is a sentiment expressed by the author of our Declaration of Independence and unabashed champion of individual liberty, Thomas Jefferson. "The legitimate powers of government," Jefferson wrote, "extends to such acts only as are injurious to others." Until someone can demonstrate to me how two gay adult Americans voluntarily getting married somehow injures me or anyone else, I'll remain in opposition to a federal ban on gay marriage.

Chuck Muth is president of Citizen Outreach, a non-profit public policy
advocacy organization in Washington, D.C. The views expressed are his own
and do not necessarily reflect the views of Citizen Outreach. He may be
reached at chuck@citizenoutreach.com



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