“DOMA and the Supreme Court”

Sydney M. Williams

Thought of the Day

“DOMA and the Supreme Court”

March 28, 2013

There are times when the Supreme Court should decide not to decide. While I am not a lawyer, it seems to me that this is one of those times. Habits and social mores do change, but they tend to do so slowly. It takes time for people to accept that which they have long known to be forbidden. And, ultimately habits become codified into law. There has been an indisputable trend toward the acceptance of same-sex marriage. It has followed a gradually ascending path that in the past few years has accelerated. That trend is well described by Nate Silver in Wednesday’s New York Times. Nine states and the District of Columbia now have laws approving same-sex marriage. Another five states have laws that recognize domestic partnerships and civil unions. The model Mr. Silver has created suggests that in 2020 forty-four states will approve similar statutes.

Proposition 8, which banned same-sex marriages, passed in 2008 by a margin of 52.3% to 47.7%. It set aside an earlier State of California Supreme Court decision that had allowed same-sex marriages. Once the ban was enacted, the governor and attorney general decided to neither appeal nor defend it. That decision was then left to two private citizen’s groups. They tried to overturn the ban but lost their case in a federal appeals court. That, then, set the stage for the case going to the Supreme Court. “The ban,” in the words of Ted Olson, the lawyer representing the plaintiffs, “is a measure that walls off the institution of marriage.” The ban’s backers are represented by Charles Cooper who indicated concern with the effect of same-sex marriages on traditional families. Gay marriage supporters see the issue as ripe for the Supreme Court to rule in such a way that same-sex marriage would apply across the country. Doing so, however, would certainly make the Court “activist,” a term that has pejorative connotations to those like the New York Times, at least when they rule in favor of conservative causes. However, in Wednesday’s editorial they set aside any concerns about being activist, and actively encourage the Court to nullify the ban.

The trend toward acceptance of same-sex marriage, it would seem, is inevitable. A recent Washington Post poll, quoted by Eugene Robinson in Investor’s Business Daily, suggests that 60% of Americans approve of gay marriage, with 80% of adults under thirty supporting the notion. Nevertheless, thirty-one states either do not recognize civil unions or marriage between same-sex couples, or they have adopted Anti-Gay Constitutional Amendments.

But, our age demands instant gratification. Nevertheless, we should remember that changes in social behavior take time, and society is usually best served when customs are not forced to adapt too quickly. In the history of our nation, seventeen years is relatively short. It was in 1996 that Congress passed, and President Clinton signed, the Defense of Marriage Act (DOMA). At that time, only 27% of Americans supported same-sex marriage. (President Clinton, it should be noted, has since changed his opinion and now favors same-sex marriage, which is unsurprising, as he excels at the art of raising a finger to test the wind’s direction.) By 2003, according to Gallup, approval had risen to 33 percent. Nate Silver writes that then the mood shifted sharply. “Among the 12 polls conducted since 2012, all but four have shown more Americans supporting same-sex marriage than opposing it,” he writes.

Among the more thoughtful and (in my opinion) wise commentators on this difficult issue has been Georgetown law professor David Cole. In Tuesday’s New York Times he noted that, in the long term, same-sex marriage is inevitable, but then added: “Prudence counsels that marriage equality should be allowed to continue gaining support in the states, and that a federal resolution should be left for another day.” No matter how anxious one is to get this issue approved and behind us, one should not forget that our governing system is federal. The 10th Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people.” Forcing states to take action against the will of their citizens is not usually the most diplomatic of tactics, at least not when the same end might be achieved by waiting a short time longer. After all, the trend is in the direction of approval. We may live in a fast-paced world, but patience is still a virtue.

Moving slowly allows people to debate issues and make informed decisions, rather than being force-fed a conclusion. I remember once, years ago, asking my sister how she always seemed to get her way in marriage. She told me it was easy. She always let her husband feel that all decisions were his. In the same vein, Professor Cole wrote in the Times: “Justice Ruth Ginsberg, an unabashed defender of abortion rights, has criticized Roe [Roe versus Wade] for imprudently intervening in that debate at a time when the idea of abortion rights was already gaining ground at the state level. The Roe decision galvanized the antiabortion movement, with political impacts that still linger.”

It is understandable that beneficiaries of this issue, and especially those that are raising children, are anxious to gain legal recognition of their status. It is also understandable that same-sex partners have what seem legitimate tax and inheritance issues that need resolution. Nevertheless, the entire concept of same-sex unions is a relatively new phenomenon. It is new enough that there has been very little done, for example, in terms of studying the long term effects on the children of gay and lesbian parents. Nelson Lund, a law professor at George Mason University, noted in a Wednesday’s Wall Street Journal op-ed that “public opinion seems to be shifting in favor of change [toward same-sex marriage.]” However, he warned that there has been only one study using a large, randomized sample concerning the well-being of children raised by same-sex parents. The results of that survey were not favorable to same-sex parents. Professor Lund writes: “This research, by Mark Regnerus, a sociologist at the University of Texas, found that children raised in a household where a parent was involved in a same-sex romantic relationship were at a significant disadvantage with respect to a number of indicators of well-being – such as depression, educational attainment, and criminal behavior – compared with children of intact biological families.”

That may well be true, but for myriad reasons not every child can be raised in what we used to call ‘nuclear families.’ However, with some notable exceptions, most studies have shown that children raised with both a mother and a father are better off – they become better students, they are less likely to be involved in criminal behavior, and they have a greater likelihood of becoming productive citizens. Death, divorce, illness and separation will always deprive many children of the advantage of two parents. There is nothing that can be done about that. But if society is to push any one agenda, it should encourage that which we know does works – families consisting of a mother and father.

Few Court cases come with as much political baggage as does this one. It almost seems that the Justices will be damned no matter how they rule. Dan Balz, writing in the Washington Post, put it that the Justices were “operating in the middle of a political hurricane.” Jonathon Rauch of the Brookings Institute suggested that there were three political arguments facing the Justices. One, gay equality has come to be accepted as a civil right, and that facing that reality will help gay couples. Two, while popular support for same-sex marriage is gaining support, the country is still making up its mind, and it is premature for the Court to take the decision out of the political process. Three, can a state such as California, which has approved civil unions, gay adoption and antidiscrimination protections, legitimately withhold equality in terms of marriage, as, in fact, the ban did?

I am tempted to fall back on the satirical newspaper, the Onion, which increasingly brings a refreshing look to difficult situations. A recent article on the subject of gay marriage was entitled “Sure, Who Cares.” The authors pretended to quote Chief Justice John Roberts: “Get married, don’t get married, do whatever you want, It’s the opinion of this court that we don’t give two s***s what you do.” While I might have phrased my own opinion slightly differently, the meaning would have been the same.

It is at times like this that I long for true wisdom, wisdom that transcends political opportunism. It is, unfortunately, a commodity that seems increasingly rare. My personal preference is that the Justices listen to Professor David Cole. He concludes his piece in the New York Times: “”History suggests it would be unwise for the Supreme Court to impose a uniform solution on the nation now. Doing so would touch off huge civil resistance in the most conservative states. Prudence and law dictate the same result: cold feet at the altar.” Deciding not to decide seems a wise decision. I hope the Supreme Court reaches a similar conclusion.