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.

 

Comments

Comments

  1. theo mckinney says:

    4 REASONS

    It used to be legal to maim/torture/exile/murder gay couples out of fairness and equality.

    Arrests were finally made amongst the antigay lynch mobs and vigilantes, cases went to court, and “unpopular” citizens’ civil rights were gradually recognized or restored as the Constitution stepped in to finally identify those odious ways as 100% illegal, too.

    “No more bodily harm to LGBT citizens just to be mean” said the US Constitution every time it was asked. “people who try are to be considered ‘unlawful’.”

    “Equality and justice for all.”

    “Even the so-called *icky* Gay people”.

    Once it was discovered in Hawaii that marriage equality was clearly implicit to state constitutional law (without a ban of some sort edited in –long after the fact); this was when today’s fad for creating animus-driven -and/or a new “religious” inspired practice of gay human psychological/virtual “sacrifices” (In the Name of God, yet), was born:

    Another more thinly-veiled psychological attack on innocent gay citizens, now that the physical sorts of antigay attacks are being outlawed, even on school playgrounds.

    Believe it or not, there are some “church” factions bemoaning their growing inability to justify bullying innocent gay children under the color of school authority anymore. They call this turn of events “a problem”.

    I call that deranged. Only some Satan diety, if there is such a thing, could take delight in supporting such “ideals”.

    God seems to be on the side who speak the truth under oath; the very same ones who got the rainbow, too. And the couples who know deeply what “love, no matter what” might mean.

    ““““
    Unfortunately, the mechanics of checks and balances initially ALWAYS favors “laws”, good or bad which might be voted in by people, up until that laws is proven more harmful than benificent.

    On passing Federal Constitutional muster: if a “bad law” voted in by ballot has no validly recognized effect on the issue it was designed to remedy, yet harms certain innocent people –but not others- while it exists, that “law” must be stricken.

    DOMA has been failing on this count consistently. Ten times now.

    This is no accident.

    Meanwhile, in the initial federal ruling gutting CA’s ban, now court precedent, the judge shows four reasons, any one of which would kill such bad “law”-making as one of these “constitutional” (lol) marriage bans.

    Four separate and distinct litmus tests used to determine ACTUAL “Constitutionality”, and CA’s illegal Proposition 8 failed all of them.

    Because irrational law-making is illegal and marriage bans are, by all federal court accounts so far, illegal and irrational and cannot stand as “law” once challenged.

    Fact.

Polititainment

Obama channels Chris Rock again

At rallies for Democrats in Maryland and Illinois on Sunday, Obama dropped the name "Cousin Pookie" -- a character that he used frequently to energize black voters during his 2008 campaign -- during his speeches.

Oliver beats Supreme Court's camera ban
Comedian John Oliver is sick of the Supreme Court ban on cameras in the court room and the ridiculous ways it makes television news stations have to cover those cases. But all hope is not lost. “What happens at the Supreme Court is way too important not to pay attention to and yet the ban […]
Stewart and Colbert go after 'Fangate'

Both Jon Stewart and Stephen Colbert had a field day with “Fangate” Thursday night.

O'Reilly v Stewart on 'white privilege'

Jon Stewart had one goal in bringing Bill O’Reilly on his show Tuesday evening: "I want you to admit that there is such a thing as white privilege."

Galifianakis gives Obama a nickname
Zach Galifianakis once came up with a very special nickname for President Obama, he recounted on “The Daily Show” Tuesday night. It all started when Galifianakis came to the White House to film the Emmy-winning “Between Two Ferns” episode to promote Obamacare. “Before we went to interview the president, I ate in the White House […]

White House

President Obama, unpaid bills and the curious editing of the White House transcript
President Obama, some unpaid bills and a curiously “inaudible” section of the White House recording of a speech — that’s how all good stories start, right? While at a Democratic National Committee fundraiser in Chicago, Obama cracked a joke about the “unpaid bills” at his home. The joke was reported by the White House Press […]
Secrecy shrouds how the Obamas cook their chicken wings

Now it seems the Obamas are tight-lipped even about their eating habits.

Obama delivers devastating blow to red state Democrats, calls them ‘all folks who vote with me’
President Obama can’t seem to stay out of the 2014 midterm elections, no matter how much his fellow Democrats want him to. Obama spoke on Al Sharpton’s radio show Monday, which was later replayed on MSNBC, insisting that red state Democrats are still his “strong allies.” “A lot of the states that are contested this time […]
Obama reveals his favorite Supreme Court decision

President Obama dished on his favorite Supreme Court decision during his presidency, and it wasn’t either of his interviewer’s top guesses.

Poll: Obama less ‘effective’ at ‘managing basic functions’ of government than George W. Bush
Since his popularity and approval ratings began to slide during his second term, former President George W. Bush has served as a scapegoat for Democrats and current President Obama. Bush’s name has been invoked with almost every negative event that has come America’s way. But it seems that the “blame Bush” strategy hasn’t made the […]

Congress

Republicans say they will reform the IRS

Republicans are talking about reforming the IRS if they gain the majority in the Senate next month, but seem to be treading with caution on making any specific promises.

'Wastebook' finds $25B in 'unnecessary' spending
Monkey gambling, synchronized swimming sea monkeys, and mountain lions on treadmills, oh my! Sen. Tom Coburn (R – Okla.) released his fifth and final “Wastebook” Wednesday, chronicling $25 billion tax dollars spent on 100  “silly, unnecessary, and low priority projects” this year. His findings are absolutely astonishing. Coburn, who is retiring this year, is not letting his fellow […]
Dems target Republicans as extremists on ed issues

Democrats this election cycle are working hard to paint their Republican opponents as wild extremists who would slash all funding for student loans.

Udall struggles to think of his favorite books

Sen. Mark Udall (D-Colo.) seemed a bit rattled in his recent interview with ABC 7 News.

Rand Paul: W.H. hasn’t accurately described Ebola
Sen. Rand Paul (R-Ky.) told Bloomberg politics he believes that the White House has been inaccurately depicting the risks of contracting Ebola. “I think from the very beginning they haven’t been completely forthright with us,” said Paul. “They’ve so wanted to downplay this that they really I don’t think have been very accurate in their […]