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Gay marriage, conservatism and the role of the judiciary

The Supreme Court’s announcement that it will consider a pair of gay marriage cases this term puts conservatives in a tough spot.

On the one hand, same-sex marriage is clearly gaining political traction nationwide, with voters in Maryland and Maine both endorsing the practice in 2012 after years of rejection at the ballot box. Last weekend the first gay marriage was held in Washington state after voters approved the policy via referendum on Election Day.

On the other hand, certain outcomes in the cases would be devastating to conservative notions of the role of the judiciary and the federal government.

Although the GOP is largely staying silent about the cases, the party could educate Americans on the proper role of the judiciary without being hostile to gay rights by consistently applying conservative judicial principals to both cases.

For example, conservatives would be wise to embrace the case challenging President Bill Clinton’s 1996 Defense of Marriage Act (DOMA), U.S. v. Windsor.  In that case, the plaintiffs are asking the Court to rule that Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the law because it denies marriage recognition to gay couples who are legally married under state law.

One of the central themes of the challenge to DOMA is the notion that the states should, and historically always have, exercised full authority to dictate the terms of domestic law within their borders.  As the Second Circuit points out, “DOMA is an unprecedented breach of longstanding deference to federalism.”  True commitment to the Tenth Amendment means allowing states to experiment unimpeded with their laws and institutions, including marriage.

Conversely, the case that may overturn California’s Proposition 8, Hollingsworth v. Perry, is particularly troubling. In that case, the lower court held that because the California‘s Supreme Court previously established gay marriage, taking that court-granted right away from gay citizens through a voter-approved constitutional referendum ( Prop. 8 ) violated the Equal Protection Clause of the Fourteenth Amendment.

In simpler terms, at issue is whether the legal views of a handful of unelected judges can effectively become permanent law, even against the will of millions of voters who wish to amend their state’s constitution specifically to overrule those judges’ opinions.  It’s hard to imagine a legal ruling more offensive to the notion of checks and balances or utterly adverse to the democratic process. Even ardent pro-gay rights activists should shudder at that kind of judicial precedent.

Conservatives should be consistent in their justifications for judicial outcomes and point out the various inconsistencies on the Left.

For example, equal protection under the law is imperative to the Left in the gay marriage context, but entirely ignored when racial distinctions are used in college admissions (also under consideration by the Supreme Court this term).  Federalism is God’s gift to the Constitution when DOMA is at issue, but Obamacare’s state coercion on Medicaid is apparently an acceptable intrusion on states’ rights.  And finally, the First Amendment is generally considered sacrosanct, except when free speech is exercised by certain disfavored speakers like corporations (even non-profits) or religious entities.

Republicans are right to feel the need to moderate on gay-rights, especially when it’s obvious that gay marriage referendums will likely continue to be approved by voters in states throughout the Union.  Indeed, the GOP barely made a peep when “Don’t Ask, Don’t Tell” was repealed or when President Obama announced his final “evolution” on the issue of gay marriage.

However, moderation on gay marriage should not prevent the GOP from staging a principled defense of conservative judicial principles. Gay marriage will end up legal in California within a few years regardless of what the Supreme Court does this term. Poor judicial precedent, on the other hand, may take generations to fix.