Constitution

The New York Times gushingly describes how President Obama’s unique background — he’s “a man from many worlds,” “a transcender of tribes,” and, yes, “a former constitutional law professor” — has allowed him to unearth a creative “middle way” on the question of redefining marriage.  That “middle way,” according to the Times’s account, is to come out personally for gay marriage while suggesting that the issue should be left to the states.  Hence, Obama is “embracing a liberal priority in a notably conservative way.”  

But Obama’s own words and actions contradict the Times’s account, as the “middle way” turns out to veer sharply to the left.  Obama is no more in favor of leaving the issue of redefining marriage up to the states than he is of leaving the issue of health care up to the states.  Instead, as with essentially all issues, Obama wants the federal government to decide — only, in this instance, he wants federal judges to decide.

During the same interview in which he came out in favor of redefining marriage, Obama declared that he considers the Defense of Marriage Act — which defines marriage for federal purposes as being between a man and a woman — to be unconstitutional under the Fourteenth Amendment.  The Fourteenth Amendment (the middle of the three amendments ratified in the wake of the Civil War) was principally written to limit the states, not the federal government.  If the Fourteenth Amendment, therefore, forbids the federal Defense of Marriage Act from declaring that marriage is between a man and a woman, wouldn’t it also forbid states from making that same sort of declaration?  The former constitutional law professor hasn’t said why it wouldn’t.

Moreover, to say that the Constitution somehow forbids Congress — the branch comprising the federal representatives of the people — from adhering to the longstanding definition of marriage, is really quite a claim.

The Defense of Marriage Act (repeatedly referred to by Obama as the “Defense Against Marriage Act”), which was signed into law by President Clinton, does two important things:  It defines marriage for federal purposes as being between a husband and wife, and it shields states from having to comply with alternative definitions imposed by other states or those states’ judges (some of whom have “found” a requirement hidden in their state constitutions that says that marriage must be redefined).  In other words, the Defense of Marriage Act (DOMA) affirms that the people of each state have the authority to define marriage within their own state — with the people (when voting directly on the issue) so far having reaffirmed traditional marriage by the tally of 31 states to 0 — while also confirming that when a federal law refers to marriage, it is referring to a union between a man and a woman.

When a policymaking federal judge recently struck down DOMA, amazingly declaring that that to “divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning” — one motivated, the judge added, “only” by “irrational prejudice” — the Obama administration’s response was to announce its refusal to defend DOMA in subsequent cases.  On the day that he announced his conversion on gay marriage, Obama said, “I helped to prompt that — that move on the part of the Justice Department.”

That same day, he also made his announcement that he thinks DOMA represents “a violation” of the Constitution. But there is seemingly no way to assert that DOMA’s definition of marriage is unconstitutional without likewise asserting that similar definitions reaffirmed by the states (such as in North Carolina — by a 22-point margin — just one day before Obama’s public conversion) are also unconstitutional.  As such, when Obama accuses Mitt Romney of trying to “re-federalize the issue” and claims “it is a mistake to — try to make what has traditionally been a state issue into a national issue,” he apparently either doesn’t understand the logical conclusion of his own constitutional argument, or else he’s being disingenuous.

Last week, a federal judge in Washington issued a truly extraordinary opinion. Judge Janice Rogers Brown, of the U.S. Court of Appeals for the D.C. Circuit, went out of her way to challenge one of bedrock achievements of the 20th Century liberal legal establishment: the de-emphasis of economic rights, relative to other "fundamental rights," as a matter of constitutional law. Judge Brown's opinion already has sparked controversy, and it deserves closer scrutiny.

As is becoming increasingly clear, the legislation that was the principal cause of the Democrats’ historic defeat in 2010 isn’t getting any more popular as President Obama heads toward his day of accountability to the American citizenry.