If the Supreme Court rules the Defense of Marriage Act (DOMA) unconstitutional, the LGBT community will undoubtedly have gained a valuable victory. However, such a ruling will not be a moral victory and might actually do harm to the gay-marriage cause by stripping the momentum from rights-battles in state legislatures.
Moreover, if the Supreme Court adopts President Barack Obama’s administration argument against DOMA, state legislatures will have zero incentive to give same-sex couples even basic benefits — for the Obama administration argued only if a state adopts civil unions it must legalize same-sex marriage.
Should the Supreme Court overturn DOMA, those who oppose gay marriage will remain opposed to it. For gay marriage opponents, a ruling against DOMA will provide no impetus or compelling reasons for them to change their viewpoint. Such a ruling will only reveal five unelected people’s approval of gay marriage and their contortion of the Constitution to fit their philosophies.
If DOMA is struck down, the largely conservative constituents of the gay-marriage opposition will color the ruling as merely another example of our burdensome federal government intruding and overstepping its domain — this time via an activist court. Perhaps there would be some truth in their complaint, as such an intimate moral issue should play out locally if it can.
The overreaching federal government argument would be nullified if the gay-marriage battle was fought in state legislatures and referendums. State-by-state victories would not only be inspiring, but also would bolster the same-sex marriage cause as they would be carried by Democratic reforms as opposed to judicial ones.
More importantly, local battles would provide opportunities for supporters and opponents of gay marriage to engage with one another and — as evidenced by the tide of Republicans legislators with gay children voicing their newfound support of gay marriage — might foster moral victories in addition to legislative ones.
An overwhelming majority of young people favor same-sex marriage. Seventy percent of Millennials support legalizing gay marriage, as the Pew Research Center showed, while a survey taken by Post-ABC poll showed 81 percent approval.
Thus it seems the issue will eventually be decided in favor of gay marriage. As Martin Luther King Jr. liked to say, “the arc of the universe is long, but it bends toward justice.”
Rather than Supreme Court arbitration, it would be more salutary if the arc of history was bent toward justice locally on a state-by-state basis. This organic process would be more apt to change laws and minds.
Considering I’m not among those whose rights are being suppressed, perhaps it’s a bit presumptuous of me to call for what will undoubtedly be a longer and more trying route, but I think it would be best in the long run for the gay-rights movement.
Civil rights should be state-by-state
April 2, 2013
steve • Apr 2, 2013 at 8:36 am
Funny that you would quote King and then suggest that the gay community sit back and take what they can get, that would seem to suggest more of a Booker T Washington kind of approach. King not only advocated taking it to the states but very much pushed for legal action to secure the rights of African Americans. The idea that it needs to be one or the other is frankly a weak argument. The gay community is well within reason to petition the courts when they believe their federal civil rights have been violated by the states. The Supreme Court is not simply a bunch of “unelected officials,” they are a crucial part of the checks and balances put in place to insure that the states the president and/or congress do not violate individual rights.
steve • Apr 2, 2013 at 8:36 am
Funny that you would quote King and then suggest that the gay community sit back and take what they can get, that would seem to suggest more of a Booker T Washington kind of approach. King not only advocated taking it to the states but very much pushed for legal action to secure the rights of African Americans. The idea that it needs to be one or the other is frankly a weak argument. The gay community is well within reason to petition the courts when they believe their federal civil rights have been violated by the states. The Supreme Court is not simply a bunch of “unelected officials,” they are a crucial part of the checks and balances put in place to insure that the states the president and/or congress do not violate individual rights.
David Nelson • Apr 2, 2013 at 8:15 am
I disagree that a U.S. Supreme Court opinion about the unconstitutionality of the federal Defense of Marriage Act would be considered a federal “overstep” an activist Court. Article I, Section 8 of the Constitution for the United States of America doesn’t include marriage among its delegated authorities in which the federal government (including its court) may engage. State and federal histories have well established marriage, like education, a state authority under the Tenth Amendment to the federal constitution.
The Commonwealth of Massachusetts, for example, filed the federal court complaint Massachusetts v. United States Department of Health and Human Services, 698 F.Supp.2d 234 (2010) against the DOMA based on the Tenth Amendment domain of state marriage laws. The U.S. Court of Appeals for the First Circuit opinion about the matter determined that the DOMA was unconstitutional. Enforcement of the opinion is pending the outcome of the U.S. Supreme Court opinion.
I agree however, that the number of states which perform and/or recognize same-sex marriages have not only succeeded where federal intervention has rightly failed, but have clearly reiterated their authority to do so where the federal government is specifically prohibited.
A U.S. Supreme Court opinion which determines the unconstitutionality of the DOMA would be constitutional, lawful and unsettling to current federal interventions into the marriage realm only so far as the interventions have been allowed thus far. Overall, I doubt that such an opinion would change the marriage-laws landscape much beyond those states which choose to perform and/or recognize same-sex marriages and those which choose not to do so.
The question of portability of same-sex marriage benefits among the states (see Loving v. Virginia; and the recognition of marriages between states) might come with a U.S. Supreme Court opinion about the DOMA, but I suspect it will come later.
David Nelson • Apr 2, 2013 at 8:15 am
I disagree that a U.S. Supreme Court opinion about the unconstitutionality of the federal Defense of Marriage Act would be considered a federal “overstep” an activist Court. Article I, Section 8 of the Constitution for the United States of America doesn’t include marriage among its delegated authorities in which the federal government (including its court) may engage. State and federal histories have well established marriage, like education, a state authority under the Tenth Amendment to the federal constitution.
The Commonwealth of Massachusetts, for example, filed the federal court complaint Massachusetts v. United States Department of Health and Human Services, 698 F.Supp.2d 234 (2010) against the DOMA based on the Tenth Amendment domain of state marriage laws. The U.S. Court of Appeals for the First Circuit opinion about the matter determined that the DOMA was unconstitutional. Enforcement of the opinion is pending the outcome of the U.S. Supreme Court opinion.
I agree however, that the number of states which perform and/or recognize same-sex marriages have not only succeeded where federal intervention has rightly failed, but have clearly reiterated their authority to do so where the federal government is specifically prohibited.
A U.S. Supreme Court opinion which determines the unconstitutionality of the DOMA would be constitutional, lawful and unsettling to current federal interventions into the marriage realm only so far as the interventions have been allowed thus far. Overall, I doubt that such an opinion would change the marriage-laws landscape much beyond those states which choose to perform and/or recognize same-sex marriages and those which choose not to do so.
The question of portability of same-sex marriage benefits among the states (see Loving v. Virginia; and the recognition of marriages between states) might come with a U.S. Supreme Court opinion about the DOMA, but I suspect it will come later.
Mr. Anonymous • Apr 2, 2013 at 5:47 am
Yes. Make sure that your cartoon depicts an elephant, thereby smearing republicans. And make sure he is frowning, to show how mean spirited he is. You people are so predictable. And pathetic. First of all, there is no particular political or social position on the issue of gay marriage. Plenty of democrats oppose it on religious grounds. And there is nothing inherently contradictory in being gay and believing in God, going to church, or supporting traditional marriage. Your simplistic arguments are really tiring and short sighted. You should really do some homework on an issue before you write about it.
Brent Hill • Apr 2, 2013 at 10:48 am
How can you say there is no particular political or social position on gay marriage? The 2012 Republican platform calls for a constitutional amendment to ban same sex marriage and affirms support of DOMA. It also advocates for reinstatement of Don’t Ask Don’t Tell and for the end of efforts to stop persecution of gay people in Africa. You should probably follow your own advice about doing some homework before you write about it.
Normandy • Apr 3, 2013 at 1:57 pm
well, dumdum, the republican platform is AGAINST full equality-the democratic platform is not-what should the picture be?
Mr. Anonymous • Apr 2, 2013 at 5:47 am
Yes. Make sure that your cartoon depicts an elephant, thereby smearing republicans. And make sure he is frowning, to show how mean spirited he is. You people are so predictable. And pathetic. First of all, there is no particular political or social position on the issue of gay marriage. Plenty of democrats oppose it on religious grounds. And there is nothing inherently contradictory in being gay and believing in God, going to church, or supporting traditional marriage. Your simplistic arguments are really tiring and short sighted. You should really do some homework on an issue before you write about it.
Brent Hill • Apr 2, 2013 at 10:48 am
How can you say there is no particular political or social position on gay marriage? The 2012 Republican platform calls for a constitutional amendment to ban same sex marriage and affirms support of DOMA. It also advocates for reinstatement of Don’t Ask Don’t Tell and for the end of efforts to stop persecution of gay people in Africa. You should probably follow your own advice about doing some homework before you write about it.
Normandy • Apr 3, 2013 at 1:57 pm
well, dumdum, the republican platform is AGAINST full equality-the democratic platform is not-what should the picture be?
seriously • Apr 2, 2013 at 5:33 am
DOMA is a federal statute. Striking it down is just removing one road block to marriage equality and will not require states to adopt same sex marriage. It will open up federal benefits to those married in states with marriage equality and force other states, at the very least, to recognize same sex marriages that are legal in other states (just as opposite sex marriages). It does not require states to make same sex marriage legal. That will still be something that must be accomplished by the residence of each state.
The whole argument is whether DOMA or any other marriage restrictions are unconstitutional. We have a constitution in the US for a reason. To allow laws to remain on the books that run contrary to what is written in our constitution would be counter to what this nation stands for.
Removing DOMA and recognizing equality should be the supreme courts first priority.
seriously • Apr 2, 2013 at 5:33 am
DOMA is a federal statute. Striking it down is just removing one road block to marriage equality and will not require states to adopt same sex marriage. It will open up federal benefits to those married in states with marriage equality and force other states, at the very least, to recognize same sex marriages that are legal in other states (just as opposite sex marriages). It does not require states to make same sex marriage legal. That will still be something that must be accomplished by the residence of each state.
The whole argument is whether DOMA or any other marriage restrictions are unconstitutional. We have a constitution in the US for a reason. To allow laws to remain on the books that run contrary to what is written in our constitution would be counter to what this nation stands for.
Removing DOMA and recognizing equality should be the supreme courts first priority.