From respected conservative legal theorist Michael McConnell, an interesting WSJ op-ed on DOMA: The Constitution and Same-Sex Marriage. He backs a federalist approach that finds a reasonable way to restore same-sex marriage in California (arguing that those seeking to void the district court ruling that threw out Prop. 8 lack standing to do so) while also getting rid of DOMA’s ban of federal recognition of same-sex marriages in states where they are legal, without imposing same-sex marriage nationally. That sounds like a decent solution (certainly, we could do much worse), avoiding a political backlash in southern and conservative states. Unless equal really does mean equal under the Constitution, whatever the backlash.
This New York Magazine report shows how it’s a fearsome muddle to get divorced when you’re married in one state but not in another. States have residency rules for divorce but not for marriage, so if you can only get divorced in a state that recognizes same-sex marriages but you live in on that doesn’t, then someone you may have broken up with years earlier may claim a legal right to make medical decisions for you and inherit your property. And if the Supreme Court ends federal marriage discrimination and nothing else, the not-quite ex could claim the beneficiary’s share of your Social Security. You also can’t move on and marry somebody else while residing in a non-marriage-equality state. That’s not good.
More. Via Slate, The Sexual Fetish of Gay Marriage Opponents: “Defenders of DOMA and Prop. 8 say marriage isn’t about love or parenting. It’s about coitus.”
Furthermore. Richard Epstein, thoughtfully, on Gay Marriage and the Libertarian’s Dilemma:
Though I am still uncertain of how I would come down in these two cases, in the interest of full disclosure, I did lend my help to the anti-DOMA team…. But my equivocation on the case should not slow down Justice Anthony Kennedy. If he wants to maintain his own definition of liberty consistently, the author of the Lawrence opinion has to go the whole nine yards and come down in favor of gay marriage. Now, if he would only agree to return to the more general principle of freedom of contract embodied in Lochner v. New York as part of that decision, then it would indeed be a red-letter day for the Court.