This coming week the Supreme Court finally takes up same-sex marriage in two
The first case comes out of California. California's Supreme Court ruled
that forbidding same-sex marriage was unconstitutional. A campaign to
reverse this decision resulted in putting the issue to a vote by public
referendum, called Proposition 8. Proposition 8 was passed by California
voters, and same-sex marriage was banned.
However, in the interim between the California Supreme Court decision and
Prop 8, thousands of gay and lesbian couples legally got married. The
petitioners are asking the court to recognize a right to same-sex marriage,
and declare that any law limiting same is unconstitutional.
The second case involves the federal Defense of Marriage Act ("DOMA"),
passed by a Republican Congress and signed by President Clinton in 1996.
This law was passed after Hawai'i legalized same-sex marriage, and other
states panicked that this would force them to accept same-sex marriages in
their own state, or that the federal government would recognize same-sex
marriages. The law states that the US government defines marriage as "one
man and one woman". It also says that a state does not have to recognize a
same-sex marriage from another state.
The part of the DOMA that is being challenged is the first part. Currently,
the federal government can refuse to recognize a same-sex marriage from a
particular state, and thereby deny the spousal benefits that otherwise are
available under Social Security, Medicare, Medicaid, federal employee and
military pensions, veterans benefits, and income tax filing.
These two cases really put my dueling left-wing conservative hemispheres to
The conservative hemisphere places a primary value on customs, traditions,
habits, and relationships -- the result of the experiences of many prior
generations. It is, in its way, scientific because it assumes that people
are capable of learning over time, and learn best within actual day-to-day
living. As a result, these customs, traditions and habits reflect certain
timeless values: prudence, loyalty, honor, duty and obligation to others,
compassion, and the dignity of work.
The conservative perspective is also pluralistic, with its emphasis on
families and communities, voluntary clubs and associations, ethnic pride,
and the diversity of living arrangements and values (every culture needs
rebels, bohemians and a "wrong side of the tracks"). In short, much respect
given to what came before, and a commitment to hold in trust those things
that are worth keeping around. Conservatism also is skeptical about
innovation, and expects change to arise based on facts and experience, not
Fortunately, the DOMA case is a no-brainer from a
Marriage has existed a foundation of society for thousands of years Since
the founding of the United States, marriage has been a creature of state
law, not federal law. It was up to each state to define what is marriage and
what isn't, including the conditions for divorce, child custody, alimony,
and other details of creation and dissolution of marriage. My conservative
view is that is an infringement on the state's traditional powers to
regulate health, morals, and public welfare for the Federal Government to
vary federal benefits to a particular state's citizens based on how that
state chooses to define marriage.
If Hawai'i wants to call same-sex marriage a "marriage", then the feds
should accept it. If Mississippi wants to limit it to opposite-sex couples,
the feds should accept that too. Let each state's democratic processes work
out what its citizens want, and the Feds should stay out of it.
The Proposition 8 case, however, puts the "left-wing" side of my brain into
overdrive. My left-wing hemisphere is obsessed with equality.
By equality, I mean the idea that all people are created equal -- just like
it says in the Declaration of Independence. Simply by being human we have a
worth, a dignity, and a value that cannot be quantified (even in our great
age of putting a numerical value on everything).
But the left-wing perspective builds on this idea of equality. It holds that
the differences in the conditions of our lives resulting from our race,
religion, wealth, health and social status can become so extreme that they
become unjust and, therefore, they demand remedy.
Where the democratic process has not provided a remedy, Americans have
looked to the Supreme Court.
From the left-wing perspective, recognizing "new" constitutional rights has
little to do with a "correct reading" of the constitution. The Founders
(Hamilton, Jay, Adams, Jefferson, etc.) were enlightened, intelligent, and
public spirited men, but they were also politicians. In creating the
Constitution, they were practical leaders trying to negotiate the terms of a
new form of government.
Thus, the Constitution was a political bargain among states. Most of the
bargaining was geared toward getting states that supported slavery to sign
That's why each state gets two senators, even though this gives states with
less than 10% of the population huge sway over federal policy. Its why even
though they couldn't vote, blacks were counted at "three-fifths" of a person
so slave states could have greater representation in the House of
Representatives. Its why the constitution expressly forbade Congress to
outlaw slavery in the states where it already existed. And finally, in what
is perhaps the greatest irony, the Bill of Rights was added to the
Constitution (note that as originally written, the Bill of Rights only
applied to the federal government -- states could still regulate religion,
speech and due process procedures) as a concession to the slave states who
feared the federal government would interfere with their internal policy and
try to force them to give up slavery.
Not quite a sacred text handed down from a mountaintop.
And discussion about the "Founder's intent" is equally specious.
What "Founder"? Alexander Hamilton, author of most of The Federalist
Papers, originally proposed turning the states into federal administrative
districts with a governor appointed by the president. On the other hand,
Jefferson was opposed to "checks and balances" and proposed that each branch
of the government should be able to come up with its own interpretation of
the constitution, and was not bound to listen to any of the others.
And what "intent"? The Federalist Papers themselves are not a recording of
the deliberations of a sacred conclave. Rather, they are a collection of
editorials published in New York and Philadelphia newspapers to sell the
public on the new proposed constitution. To rely on these to guide us today
would be as if people 250 years from now were being guided by New York Times
op-eds by David Brooks and EJ Dionne!
So, the left-wing perspective suggests we stop the charade that the Supreme
Court is anything other than another political branch of the government.
It's only difference is its narrower scope of authority, and a different
decision making process, compared to the elected branches of government. The
Supreme Court is not a priesthood interpreting sacred text, but a political
branch for providing a remedy where equality demands justice.
Isn't life hard enough? Won't we all face tragedy, illness, death, career
reversals, and loneliness? Don't we all struggle to make sense of life? And
don't we all seek out relationships with other people to get us through all
Is it just that citizens are denied forming nurturing,
sustaining relationships, simply because others disagree with their lifestyle?
Is it just that gays and lesbians are denied tangible benefits,
recognized as essential to marriage and families, simply based on who they
Whether you are left-wing or conservative, it is time to recognize a right
to same-sex marriage, and it has nothing to do with having good arguments in
favor of it.
Rather, it's because, whether you are left-wing or conservative, there is no
compelling argument against it.