During Herman Cain’s generally strong performance on Meet the Press on Sunday, David Gregory asked him, “Would you seek a constitutional ban for same sex marriage?” Cain replied, “I wouldn’t seek a constitutional ban for same sex marriage, but I am pro-traditional marriage.” Gregory followed up: “But you would let the states make up their own mind as they’re doing now?” Cain responded, “They would make up their own minds, yes.”
Cain’s answer isn’t likely to go over well with social conservatives, and indeed he’s already facing some criticism for it. But there’s a way for Cain — perhaps even during tonight’s debate — to elaborate on and to refine his answer in a manner that’s consistent with his support for traditional marriage, his support for federalism, and his response to Gregory. Cain could make clear that he’s in favor of constitutionalizing the Defense of Marriage Act (DOMA).
DOMA says (1) that no state shall be bound by another state’s definition of marriage, and (2) that for the federal government’s purposes, marriage shall be defined as a union of one man and one woman — that is, when any federal law, regulation, etc., says “marriage,” the word shall be construed as referring to the union of one man and one woman.
An amendment to constitutionalize DOMA would represent a major victory for traditional marriage, and it would do so without posing the difficulties for federalism that an outright constitutional ban on same-sex marriage would pose. And since the Obama administration is now refusing to defend DOMA in federal court, pushing to constitutionalize the law would potentially set up a clear contrast (should Cain eventually become the nominee) between Cain as a strong but reasonable supporter of traditional marriage and President Obama as someone who’s “grappling” with the issue. Moreover, since Gregory’s question was about an outright ban, Cain wouldn’t be reversing his field.
Instead, Cain (or Michele Bachmann, who has struggled to find her footing on this issue) could emphasize that constitutionalizing DOMA would ensure that the people of each state actually would get to decide this issue for themselves. That result is now very much in doubt, as judges (who illegitimately thrust this issue forward in the first place by imposing their own policy preferences from the bench) could potentially require one state to accept the marital definition of another, under a dubious reading of the Constitution’s Full Faith and Credit clause (Article IV, Section 1) or even the Equal Protection clause (Amendment XIV). At the same time, constitutionalizing DOMA would ensure that, within its own sphere of operations, the federal government would adhere to the traditional and time-honored definition of marriage.
Finally, this approach would have the added — and hardly trivial — benefit of actually standing a chance of passing. DOMA was passed with 84 percent support in the House (it passed by a vote of 342 to 67), 86 percent support in the Senate (by a vote of 85 to 14), and was signed into law by President Clinton. That was 15 years ago, but it’s still awfully hard to argue that any one state should have the power to impose a novel and revisionary definition of marriage on the others.