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John Boehner and his House of Representatives will defend Section 3 of DOMA, no surprise to anyone.

In his statement, Boehner says, “This action by the House will ensure that this law’s constitutionality is decided by the courts, rather than by the President unilaterally.”  The cheap shot at the President is to be expected from a fellow politician.  Certainly, Boehner knows perfectly well that no president could finally decide unilaterally whether a law is or is not unconstitutional, and Obama hasn’t made any claim like that.  The President can offer the court his opinion, just as Boehner and his lawyers will, but in our constitutional system it’s up to the courts to make the final call about such things.

Interestingly, Boehner does mention that ultimate authority of the judicial branch, which is strange because that authority is, to the most conservative members of his party, a one-way ratchet.  To their way of thinking, courts have authority to declare DOMA constitutional, but if they declare it unconstitutional, they will be judicial activists, defying the elected branches.  That charge is as predictable as the sun rising in the east.

So now we have a situation where the Speaker of the House differs with the President about a law’s constitutionality.  If the courts rule Section 3 unconstitutional, then, how would anyone determine whether the court got it right?  The president who signed the bill isn’t in office any more, and the one who is says that, in his opinion, Section 3 is unconstitutional.  The current leader of the House says it isn’t.  How do you determine whether a court is activist or not if different political branches are of divided opinion?

This is exactly the reason making the judicial branch independent of the political branches was so profoundly important to America’s success.  Politicians always disagree, sometimes for good reasons, sometimes for bad reasons, and sometimes for no reason at all.  When it comes to the law, someone has to resolve differences of opinion, even if those differences arise over time.  Courts are, above all, an institution that needs to transcend politics, as best they can, being composed of fallible human beings.

The constitutionality of Section 3 will now be both properly defended and properly challenged in the judicial branch, and it will be properly decided there.  Boehner is right that the courts are the correct place for such a ruling, and I think we have a right to expect him to be consistent about that when the courts do make their final decision.

I certainly don’t think libertarian-leaning Rep. Ron Paul (R-Tex.) should be exempt from criticism, but the reporting shouldn’t be as misleading as in the Advocate story, Ron Paul Supports DOMA.

There is much confusion both by politicians and throughout the media over the fact that the Defense of Marriage Act that Bill Clinton signed into law has two aspects: Section Two holds that states do not have to recognize same-sex marriages that are authorized by other states. Section Three holds that the federal government may not recognize any state-sanctioned same-sex marriage for purposes of federal law, which includes matters such as joint income tax filing, spousal immigration, Social Security inheritance, etc.

An argument can be made that Section Two upholds federalism and, even if disagreeable, allows for a slow but steady progression of state-recognition for same-sex marriage without forcing Utah and Alabama to recognize marriages performed in Vermont and Massachusetts. That could have the positive benefit of taking some of the heat off of a push by social conservatives for a federal constitutional amendment that would bar all states from recognizing same-sex marriage.

But there is no justifiable federal argument on behalf of Section Three. It’s anti-federalist, imposing one doctrine (non-recognition) on all states. It’s also ahistorical, in that the federal government has always allowed states to define their own marriage laws and to then recognize those unions.

So what’s wrong with the Advocate piece? Here’s an excerpt:

Speaking to the group Family Leader in Pella, Paul said of DOMA, “I see that as an act that was prohibiting the move to nationalize [same-sex marriage] and force Iowa to accept the rules of Massachusetts or whatever,” The Des Moines Register reports. DOMA, which President Obama and the Justice Department said they will no longer defend in court, allows states to deny recognition to same-sex marriages performed in other states, and also prevents federal recognition of such unions.

Rep. Paul states his support for Section Two of DOMA. He doesn’t mention Section Three. But the Advocate then defines DOMA via non-federal recognition.

Maybe Rep. Paul is bad on that, too. But it’s not what he is quoted as saying and doesn’t jive with his opposition to a federal anti-gay marriage amendment. The magazine says, with some justification, that Paul “seemed unclear” and showed “confusion” about DOMA, which is true to the extent he didn’t mention the anti-federalist Section Three in making his federalist argument. But the Advocate itself further muddies the water by confusing support for Section Two with Section Three; they are different, and reporting should clarify, not confuse, that point.

It’s very possible that when DOMA reaches the U.S. Supreme Court, Section Two will be upheld but Section Three ruled unconstitutional. Our efforts should be concentrated on getting rid of Section Three, even if it means living with (or even embracing) Section Two. That will require a bit more sophistication than the Advocate and other media seem willing to muster.

In addition to the studies showing growing support for marriage equality that Jonathan Rauch notes below, according to the latest polling by the highly regarded and nonpartisan Pew Research Center, about as many adults now favor (45%) as oppose (46%) allowing gays and lesbians to marry legally. Last year opponents outnumbered supporters 48% to 42%. Opposition to same-sex marriage has declined by 19 percentage points since 1996, when 65% opposed gay marriage and only 27% were in favor.

But GOP leaders, with the marked exception of Indiana Gov. Mitch Daniels, continue to place their bets on wooing the anti-gay right. As for Daniels, the latest Wall Street Journal/NBC News poll “appears to vindicate his repeated insistence that the country needs a ‘truce’ on fights over social issues while it grapples with its mounting economic challenges.” The Journal adds:

Nearly two thirds of Republican primary voters said they would be “more likely” to vote for a GOP primary candidate who says the party should focus more on the economy and the deficit and less on social issues such as gay marriage and abortion. Only 8% said they would be less likely to vote for such a candidate. The rest said they were unsure.

Yet this week House Speaker John Boehner announced he will be spearheading a congressional effort to defend the Defense of Marriage Act, which prohibits the federal government from recognizing state-sanctioned same-sex marriages. Once again, the GOP ensures it doesn’t miss an opportunity to miss an opportunity.

It was only two years ago that, for the first time, the share of Americans who think same-sex relations are morally acceptable grew larger than the share who condemned them—a first, and a breakthrough. Is same-sex marriage now at that point?

Maybe. Or, anyway, close. A unique data set going all the way back to 1988 finds that now, for the first time, more Americans support than oppose same-sex marriage.

I don’t actually think we’re there yet. Polls showing plurality support for SSM remain outliers. Most show the larger number are opposed: for example, this one shows 48-42 against.

Perhaps more significant: when you ask the question in what I think is the best way, offering the third option of civil unions, a lot of gay-marriage support shifts to CUs, with about a third of the public supporting each option. But that, too, represents a change. As recently as 2004, those opposing any legal recognition for gay couples outnumbered SSM supporters by two to one in many polls. (In 2008, Karlyn Bowman of the American Enterprise Institute published an excellent roundup.)

So, no, I don’t think gay marriage has attained true majority support. But gay relationships are there already. And, any way you slice it, the progress has been remarkable.

More: Here are two excellent scatterplots summarizing opinion on gay marriage. H/T Charles Franklin and HuffPo.

The Supreme Court ruled, 8-1, that Fred Phelps and his Westboro Baptist Church has the right to exercise his first amendment rights even at military funerals.

That’s the right result, not only legally, but for us, politically as well.  We not only can’t stifle people who oppose us — even the most vile — we shouldn’t.  While Westboro is the most extreme voice, the emptiness of their bellowing is hardly unique.   And the more people listen to the clamor and blather, the more they come to support — or at least not oppose — us.

John Boehner had exactly that problem dumped in his lap last week.  Defending DOMA is obviously something he doesn’t want to have to do, but the President’s savvy move put the ball in Boehner’s court anyway.  Of course he’ll defend the case on behalf of his base, and of course it will be no big deal; does anyone really think his lawyers will come up with any new or original arguments?  As the Prop. 8 case shows, there is little but fear and fixation underlying laws against same-sex marriage.  Popular fear and fixation, certainly, but fear and fixation still.

So let him defend it.  Better, let him try to distance himself from Fred Phelps at the same time.  That’s his real problem, and Boehner seems smart enough to know that.  If we’re very lucky, today’s Supreme Court decision will give Phelps a good boost of public attention, and I’m hoping we and John Boehner will be seeing more of him.

Newt Gingrich deserves all of the brickbats and damnation he is getting for his uninformed and thoroughly wrong opinion about the President’s DOMA decision.  I’ll only add a word about why his pugnacious subterfuge will have some appeal — and why it shouldn’t.

Gingrich is trying to morph Obama into San Francisco’s Gavin Newsom.  Newsom, in fact, is the lawless politician Gingrich wishes Obama were, who not only refused to enforce California’s anti-gay marriage prohibition, he ostentatiously allowed people in his city to openly violate it.  This was a politically savvy and profitable move for him (he is now California’s Lieutenant Governor) but it was an unapologetic violation of his legal duties, something the California Supreme Court made abundantly clear.

Obama is not Newsom.  Newsom took what he believed to be a moral position, akin to civil disobedience.  That is fine for individual citizens, but it is a bit more precarious for someone whose job is to administer the law.

Obama has either learned from Newsom’s escapade, or is relying on a different political instinct.  Eric Holder’s letter to Speaker John Boehner could not have been clearer that (a) the administration will continue to enforce DOMA as long as it is the law; and (b) that while the administration will not defend it in court, they are not trying to sandbag anyone, and want to give other parties with an interest, up to and including Congress, itself, the ability to defend it as best they can.

Enforcing the law is a clear legal obligation of any administration, local, state or federal.  But defending laws in court is imbued with political judgment.  While it is now being brought out as a bogeyman to wither the left, a Republican President who does not want to defend Roe v. Wade has leeway to make that call.  There are others who can step up to the plate.

The executive’s leeway here comes for an obvious but often depreciated reason.  The courts are a separate branch of the government.  While the executive branch can normally be relied on to defend laws, the executive is not the only possible party in a court proceeding.  Certainly, courts may give a bit of extra deference to the executive’s position, but the court’s duty is to the law itself, not to any particular party in the case.

Whether a statute is defended or opposed by Richard Nixon or the ACLU or the American Nazi Party or Congress, the courts rule on the validity of a law independent of the nature of the contending parties.  The courts are always subject to suspicion about political motives in decisions, but contrary to easy rhetoric, no single judge ever has the final say on any law.  Both the state and federal court systems have elaborate mechanisms for appeal, where multiple judges holding a myriad of political and personal views take part in the process of making these consequential decisions.  And the higher a case goes in the process, the more judges there are on the panel.  That is no guarantee against political motivation in the judiciary, but it’s an intentional layer of insulation from the naked politics of the executive and legislative branches.

Obama made his political and moral decision not to defend DOMA because that kind of choice falls within the judgment any president has.  But in the area where he has no such latitude – enforcing the law as it currently stands – he has made it as clear as can be that he will do what the law requires.

Gingrich and others may wish Obama were someone else, and may try to mischaracterize his actions to that end.  But Gingrich is today what he has always been, a cheap charlatan with a used car salesman’s patter and sincerity.

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.

This is good news: the Obama Administration drops its defense of the Defense of Marriage Act. How this plays out in the court cases, however, remains to be seen, but at long last our “fierce advocate” isn’t actually opposing judicial efforts to secure federal recognition of state-sanctioned same-sex marriages.

Added. Will the LGBT Obama partisans (including several commenters to this blog) who for the past two years have assured us that Obama had no choice but to defend DOMA against legal challenges, that he was legally obligated to order his Justice Department to do so, and who maintained that position by dismissing those of us who pointed to contrary precedents, now admit they were wrong? Nay.

On another topic in the news, I’m reposting this update to a prior post, with a nod to what’s going on in Wisconsin, Ohio and Indiana:

Here vs. There. It’s worth noting that, unlike the British Conservative party, the U.S. Republicans are under the sway of a powerful and well-organized religious right contending for influence with a more libertarian, small-government “leave us alone” faction. That’s a challenge on the right that will have to be confronted for many years to come before we see a Republican president call for “equal rights regardless of race, sex or sexuality” [as Conservative British Prime Minister David Cameron recently did].

Moreover, Britain’s Conservatives are in a governing alliance with the Liberals against the leftwing, union-dominated Labour party. But in the U.S., our traditionally liberal party, the Democrats, are now controlled to a large extent by public-sector unions. So we no longer have a pro-market liberal party. That leaves us with a rightwing party dominated by social conservatives and a leftwing party driven by redistributionist unions. Hence, our sad political predicament.

Indeed.

More. David Boaz on Madison, Wisconsin: The Athens of the West.

The Advocate publishes (online) a dissenting commentary:

Over the last months, conservatives have complained to The Advocate about its inaccurate and glowing coverage of Obama administration official Susan Rice, its lack of coverage of John Bolton’s support for “don’t ask, don’t tell” repeal and gay marriage, and its whitewashing of Nancy Pelosi and Harry Reid’s failed two years of dominance. . . . It’s time The Advocate stops painting Democrats with a perfect brush and starts highlighting the efforts of gay conservatives working to limit government’s involvement in LGBT people’s lives.