Steve Miller isn’t kidding that the Administration’s decision about DOMA is good news. I’d call it a game changer.
Nothing in the Attorney General’s letter limits the analysis he uses, which is why a lot of folks are jumping the gun and saying its reasoning will apply to all gay issues. That’s probably true, but premature. Let’s all take a deep breath.
While the courts don’t necessarily need to take their cues about the issues in a case from the parties, that is clearly the preference and practice. And while the way the federal government articulates the issues wouldn’t necessarily be the be-all and end-all, again, that would clearly be of significance to a court. The federal government is no ordinary party.
I think the administration is trying to get the first rulings on DOMA focused on (a) Section 3 and (b) how it applies to states that have already adopted full marriage rights. Section 3 just applies to the federal government, and says it can only recognize opposite sex marriages. Courts generally shouldn’t reach out for issues — and particularly constitutional issues — that go further than are required to actually decide the particular case before them. So a court, and particularly the Supreme Court, could heed the government’s lead, and decide only those two issues — Is Section 3 constitutional with respect to the federal government as it applies to a couple who are legally married under a state’s law?
That would leave other issues for another day — civil unions and domestic partnerships, Section 2 (which allows states the freedom to ignore same-sex marriages from other states), etc.
And a decision along those lines from the Supreme Court would be the best win of all, I think. Moving marriage squarely into the equality column is a solid victory. And if the Supreme Court were to rule that sexual orientation is entitled to heightened (but not strict) scrutiny, that resolves one of the foundational issues the lower courts has been struggling with — though it’s also possible the court could adopt rational basis and still rule that federal treatment of two marriages, one straight, one gay, is not equal treatment under the law. Or Justice Anthony Kennedy could move a bit further on his liberty analysis from Lawrence v. Texas, a different kind of analysis entirely.
In any event, this would then leave the lower courts to wrestle for a few years with the other questions, and the Supreme Court could see how that develops. It’s not out of the question that lower courts could rule in our favor on the more contentious issues, and the Supreme Court would not need to say an additional word. The biggest problem, from our perspective, is when lower courts disagree and the Supreme Court needs to resolve the disputes; if the lower courts rule in our favor, the Supreme Court can just refuse to accept certiorari from the losing parties. They don’t need to accept any case offered to them, and in fact refuse the vast majority.
The most amazing thing about this decision for me, though, is still the political aspects of it. Obama has made the political decision that the split in the electorate that worked against Clinton, Gore and Kerry has now been edged more solidly into the GOP side. In other words, the toxic effects of the anti-gay marriage side have migrated away from the Dems and more generally the independents, and are most potent among the Republicans now.
That’s why the letter is addressed solely to John Boehner. The Administration has taken an unambiguous stand in favor of gay equality on marriage. The ball is now in Boehner’s court, and his party’s
This extremely high profile move will have a year and a half to work its way into the public opinion polls, but I think the timing is just about right, and Obama will prove to have the better case on this issue come 2012. Gay marriage will exacerbate the existing split among the GOP, and if the economy improves (clearly one of the biggest issues on voters’ minds), gay marriage will only hurt the GOP — the exact opposite of the effect it had in 2004.
These things are never certain. But I think Obama’s political and legal instincts on this get it just right.
8 Comments for “Just Right”
posted by JT Kittredge, Cambridge MA on
Excellent analysis and very good points. I have a minor quibble: “the split in the electorate that worked against Clinton, Gore and Kerry”. The “split” worked against Clinton for DADT, but it worked in his favor before that in the 1992 election, where the gay issue was widely seen as a negative for the Republicans. They tried to tar Clinton as a radical, because he was publicly more pro-gay than any other presidential candidate before. I don’t think the 1992 public was especially pro-gay, but they were angry that the Republicans were yammering on about gay rights than about the jobs (“It’s the Economy, Stupid”).
The public has become much open to gay rights, but it’s still pretty ambivalent about same-sex marriage. There, I think the 1992 analogy holds. They might not embrace same-sex marriage, but they care about a lot of issues more. To the extent that the Republicans are forced to the focus on the issue by their base, the public is likely to be alienated by it.
posted by K in VA on
Giving credit where credit is due: It has been the strategy of GLAD that brought these carefully crafted cases to the fore and presented the opportunity Obama has now grasped. Their savvy strategy deserves recognition.
posted by BobN on
Speaking of strategy, Holder’s decision hinges on the lack of precedent in the third circuit. Surely there are other circuits without precedents establishing the standard of review. I wonder if suits are about to be filed in those courts.
posted by Jorge on
The most amazing thing about this decision for me, though, is still the political aspects of it.
I agree. I must admit not paying attention to the legal part except by memory the last time this issue came up.
posted by Wilberforce on
This move is mind boggling. I was worried for a long time that it was a mistake to insist on marraige when the public supported civil unions. I feared we would harm our allies with a backlash.
I hope I was wrong. But Obama’s bold action has moved the goal post. Now, if we did create a backlash, it’ll be partly Obama’s fault as well. I pray that I was wrong. Hopefully, Obama and his people have as much political skill as the Clintons did, and it’ll all turn out ok.
posted by Tom on
The most amazing thing about this decision for me, though, is still the political aspects of it. Obama has made the political decision that the split in the electorate that worked against Clinton, Gore and Kerry has now been edged more solidly into the GOP side. In other words, the toxic effects of the anti-gay marriage side have migrated away from the Dems and more generally the independents, and are most potent among the Republicans now.
It looks like Speaker Boehner will intervene to keep social conservatives in the party, like it or not. President Obama seems to have made a political calculation that the Speaker will look good in 2012 with a monkey on his back. No wonder he was pissed about the decision.
posted by What the to make of the DOMA announcement « Harvard College Democrats on
[…] didn’t know that this website still existed, but David Link has a good analysis of what the recent DOMA news […]
posted by Lymis on
As much as I would love an immediate and sweeping victory, and as transparently obvious as I think it is that sexual orientation should be a strict scrutiny issue, I still applaud the general direction of things, because I think that they will serve as a very rapid path to equality.
Allowing federal rights to people whose states have recognized their marriage equality is a pretty basic idea – and it’s hard to scream “states rights!” and then demand that the federal government treat some states’ actions differently than others.
And once that’s resolved, one of the fundamental issues about no recognition – civil unions – marriage goes away – often, the moderate position is “civil unions” because a state civil union can give all the benefits a state gives marriage, but once a marriage gives federal benefits and a civil union doesn’t, all that evaporates, and denying marriage is back to denying a huge batch of rights and privileges.
In fact, it could even throw the whole Prop 8 thing back to square one, because the California Supreme Court declared Prop 8 constitutional because the only benefit being denied same-sex couples was the use of the word marriage. Their decision clearly indicated that if more rights were at issue, then Prop 8 would clearly violate other provisions of the California Constitution. If DOMA falls, Prop 8 may go with it, under California law.
Similarly, the repeal of DADT is going to be a big issue as well, as people begin to deal with the reality that there will be gay servicemembers with families – and sadly, widows and widowers – who are not getting equal treatment, even though they make the same sacrifices as their straight coworkers.