A recent front-page story in The Denver Post featured Gill Foundation founder and gay activist Tim Gill and foundation president Tim Sweeney celebrating their public policy successes advancing the cause of “full equality” in what was described as “an extraordinary year for gay Americans.”
The story went on to cite the Obama administration’s announcement that it would no longer defend the federal Defense of Marriage Act, which the story described as “designed to prevent gays from enjoying the legal privileges of marriage.”
That description is accurate as far as it goes, but it doesn’t go far enough. That’s only half of DOMA. There are two key sections to the act. Section 3 restricts federal programs and benefits, like Social Security, to only those people who fit the traditional definition of marriage, specified as “a legal union between one man and one woman as husband and wife.”
The other half, Section 2, protects the sovereignty of individual states to determine for themselves what the definition of marriage will be within their borders. Currently, five states (and Washington, D.C.) legally sanction same-sex marriage. Forty-one states do not and four others are somewhere in between, not themselves codifying same-sex marriages but recognizing same-sex marriages sanctioned elsewhere. Under Section 2, individual states are shielded from being forced, under the “Full Faith and Credit” clause of the Constitution, to recognize same-sex marriages legally performed in other states.
The Obama administration asserts that barring same-sex marriages is an unconstitutional offense to the 14th Amendment’s guarantee of equal protection under the law. It argues that “strict scrutiny” should be applied, as it is in cases of racial discrimination. But the Supreme Court has never applied this test to cases involving gay rights, where it has instead used the less stringent “rational basis” test. For more than 200 years, the traditional definition of marriage has prevailed.
The Founders would have considered the notion of same-sex marriage preposterous, as would those who wrote the 14th Amendment. Ratified immediately following the Civil War, it was about protecting the rights of former slaves, about race, not sexual orientation. This is all debatable and may ultimately be decided by the Supreme Court.
In the meantime, the administration has finessed the question of whether it will defend Section 2 of DOMA in court. It should. This is a classic matter of federalism. State certification of marriage is not a fundamental right and never has been. It’s a privilege. Historic restrictions include polygamy, unions between blood relatives, and gender. Whatever federal policy may be in this area, the definition of marriage and the legal restrictions imposed on its certification should remain the prerogative of each individual state, consistent with its social mores. Gay rights activists sometimes claim they agree with self-determination by states. But when they don’t get their way, as was the case in California in 2008, they go to the courts to override the will of the people.
If DOMA is repealed legislatively or struck down by the court, there’s another remedy: an amendment to the Constitution. Two versions have been proposed. One would ban same-sex marriages outright across the country. I oppose that as a violation of that same federalism principle I cited earlier. An alternative, consistent with federalism, would allow each state to decide for itself and also be free to recognize (or not) same- sex marriages performed in other states or countries. Instead of the all- encompassing Roe vs. Wade decision, that’s the kind of thing that should have been done about abortion.
Nationally, public opinion is still opposed to same-sex marriage, although opposition is weakening, especially among young people. As public opinion evolves, so would public policy, on a state-by-state basis, as it should.
Freelance columnist Mike Rosen’s radio show airs weekdays from 9 a.m. to noon on 850-KOA.
