No DOMA Nation

Yesterday the Supreme Court struck down a key provision of the Defense of Marriage Act, a 1996 federal law that denied rights and benefits to same-sex couples, and rainbow flags flew from sea to shining sea.

The Court’s decision was one of two rulings yesterday that addressed gay marriage.  In the DOMA decision, a 5-4 majority of the Court concluded that the statutory provision violated the right to liberty and to equal protection for legally married gay couples.  The ruling means that the thousands of gay couples who are legally married under the laws of certain states will be able to take advantage of federal tax and pension rights and other benefits that are available to other married couples.  In the other ruling, the Supreme Court held that proponents of California Proposition 8, which prohibits gay marriage, lack standing to defend the law.  That ruling leaves a lower court ruling that struck down Proposition 8 intact and therefore allows California to resume with state-sanctioned same sex marriages.

The Supreme Court decisions are not the last word on the subject, because gay marriage is not legal in a majority of the states and the DOMA decision did not address a provision of that statute that provides that states are not required to recognize gay marriages performed in other states where gay marriage is legal.  Opponents of same-sex marriage say they will continue to advocate on the issue.

I’m in favor of same-sex marriage, and I’m thrilled for my gay friends whose legal marriages are now given all the rights and benefits available under federal law.  I’m also hoping that the Supreme Court’s decision helps the United States to put this issue behind us — as opposed to becoming the lightning rod on a bitterly contentious social issue, as happened with the abortion rights decision in Roe v. Wade.  It’s time for this country to stop focusing on issues that divide us, and to start focusing on how we can work together to solve our problems.

In Line For History

Usually, we associate people camped out in lines for days with hot rock concerts, or huge basketball games, or Black Friday special sales.  In Washington, D.C., however, people have been waiting in line since Friday for seats to watch the U.S. Supreme Court.

This week, the Court will hear argument on two cases that may — and I emphasize may — resolve the constitutional status of same-sex marriage.  On Tuesday, in Hollingsworth v. Perry, the Court will address Proposition 8, a state constitutional amendment banning same-sex marriage that California voters passed in 2008.  On Wednesday, in United States v. Windsor, the Court will examine the federal Defense of Marriage Act, a 1996 statute that prevents same-sex couples from enjoying benefits, such as filing joint tax returns, that are available to “traditional” married couples.

Proponents of gay marriage hope the Court will use the cases to declare that different treatment of same-sex marriages violates the equal protection clauses of the Constitution.  As is often the case with Supreme Court cases, however, procedural issues may be decisive.  In the California case, a threshold issue is whether the conservative groups seeking to defend Proposition 8 have legal “standing” to do so, which will require the Court to consider whether the groups have a real stake in the outcome or are officious intermeddlers who won’t be personally affected by resolution of the dispute.  Another key question is which “standard of review” the Court should apply, with much tougher scrutiny being given, for example, to laws that discriminate on the basis of race than to laws that simply regulate economic activity.  The Obama Administration is urging the Court to apply a heightened level of scrutiny to laws that address gender orientation.

Lurking below are the “big picture” notions that only the Supreme Court can truly consider.  Should the Constitution be read strictly, according to “original intent” and the social mores that prevailed at the time its amendments were adopted, or is it a more flexible document that can evolve to encompass cultural changes?  If the latter approach is taken, how do you keep the Constitution from being read with such elasticity that it loses any intrinsic meaning and simply becomes whatever a majority of nine justices might declare?  And if you conclude that the Constitution does protect “gender orientation,” can you write your opinion in a way that would allow courts and legislators to draw principled distinctions between same-sex marriage and other forms of personal commitment between consenting adults — such as polygamy?  Often the Court decides cases narrowly precisely to avoid have to address these kinds of broad and difficult questions.

There’s a reason people are willing to endure days of the blustery late-March weather in Washington, D.C. to get a seat for these arguments.  This week, history will be made in the solemn Supreme Court oral argument chamber.

In Favor Of “Flip-Floppers”

Today President Obama announced that he has changed his mind about gay marriage and now favors it.  Opponents of the move called him a “flip-flopper.”  Presumptive Republican nominee Mitt Romney has modified his position on certain issues over the years.  He’s been criticized as a “flip-flopper,” too.

I don’t get the “flip-flopper” criticism.  I think it’s common for people to reassess their views about issues.  I certainly don’t adhere to every belief I held when I was 20, or 30.  Life experiences have shaped my views, and circumstances have, too.  I don’t want a President who is so rigid in his thinking that he is unwilling to reexamine his position, even when events strongly suggest that his position is wrong or ill-advised.  Why wouldn’t we want a President who is flexible and open-minded enough to react to new information or new developments?

It’s worth remembering that perhaps the greatest “flip-flop” in American political history involved Abraham Lincoln.  Lincoln was morally opposed to slavery, but also was opposed to the notion that the government could, or should, simply order that slaves be freed.  He favored voluntary emancipation by slaveowners, who would be compensated as a result.  Military and civil conditions during the Civil War, however, caused Lincoln to revisit his position, and the Emancipation Proclamation was the result.  Although some people opposed the Proclamation, I don’t remember that people reacted by shrieking that Lincoln was a “flip-flopper” or an unprincipled hack.  Now, does anyone care that Lincoln’s views on the issue changed over time?  The important point was that Lincoln’s ultimate position clearly was the right position.

The lesson of Lincoln, I think, is that we should focus on whether we agree with the politicians’ stated positions, without worrying overmuch about how they finally got to those positions.  In the case of same-sex marriage, I agree with the President.  If a gay couple wants to make the commitment of marriage, and to assume the rights and legal obligations that accompany that status, I think they should be permitted to do so.  Why should a gay couple be treated any differently from another couple simply because of their sexual orientation?

I recognize that other people will disagree with this position because of their religious or cultural beliefs.  Such disagreements are the stuff of which political campaigns are made.  The important point, for purposes of this posting, is that the issue of same-sex marriage be considered and debated on its merits.  Whether a politician’s position on the issue has changed doesn’t advance the debate, and indeed just distracts from it.

Going Viral – A Short Speech Worth Listening To

For those of us older folks the definition of going viral on the Internet means becoming extremely popular in a very short period of time and the following video has had more than 13 million hits. Back in 2009 the Iowa Supreme Court decided that gay marriage would be legal in the state, but earlier this year the Iowa House of Representatives now controlled by Republicans introduced an amendment to ban Gay Marriage and Civil Unions.

Zach Wahls this nineteen year old had the opportunity to speak in front of the Iowa House of Representatives back in January and spoke briefly about his family because you see Zach has two mothers. Although the Iowa House of Representatives passed the amendment the Iowa Senate decided not to take up the issue in essence killing the bill.

The speech speaks for itself. In my mind the well spoken words of a nineteen year old will hopefully make us realize that marriage should be between two people who love each other !

Republican Reckoning

This article is an interesting treatment of some of the challenges facing the Republican Party, as it tries to figure out what it really stands for and what it really has to offer as an opposition party during the first term of a new President. My guess is that there are many people who are troubled, as I am, by the rampant federal spending and the increased taxes that inevitably will result. The concern about what the federal government is doing — which has found a populist outlet in the “tea parties” that have been occurring — would seem to give the Republicans a strong base from which to oppose what appear to be classic “tax and spend” policies.

The problem for the GOP is that many people, myself included, are equally troubled by the “conservative” position on social issues like gay marriage. I understand that many people have strongly held religious beliefs about what marriage is. I respect such views, but I also think that we cannot let religious beliefs dictate social policy — in part because America is a land that welcomes and tolerates many different religious views. Gay Americans, when they have decided to make a long-term commitment to each other, should able to enjoy the same legal rights and protections that heterosexual couples do. Being married has a religious element, but it also has broad civil legal consequences — in paying taxes, in obtaining health benefits, and in estate planning, among other areas. I think society should encourage committed couples to legally memorialize their commitment. If that commitment wanes — as it has for countless heterosexual couples — the law should provide a remedy.

The belief that there should be less government and more individual rights favors both a smaller, less financially voracious federal government and social policies that minimize government intrusion into the private lives of its citizens. Many people are committed to both of these concepts. Until the Republican Party figures out how to really appeal to those people, while at the same time continuing to enjoy the support of the “religious right,” it is going to have a difficult time putting together a working majority of voters.