Now that President Obama has announced that, having been for gay marriage (in 1996) before he was against it (in 2004 and 2008), he’s now for it again (in 2012), the Wall Street Journal editorial board comes perilously close to suggesting that Mitt Romney should change his position on the issue. In the wake of Obama’s announcement — which itself came in the wake of voters in the swing-state of North Carolina having overwhelmingly issued the opposite verdict on the wisdom of redefining the core institution of society — the Journal’s editorial board advises Mitt Romney to take the position that he’s in favor of the Defense of Marriage Act (DOMA) and thinks the issue should be settled by the states. If left at that, this would entail a retrenchment for Romney, whose position has been that he supports effectively constitutionalizing DOMA and thereby preventing some states’ redefinition of marriage from forcing the hands of all the other states.
The Journal’s advice might be fine in a vacuum, but it appears to overlook the leading role that the courts have played on this issue. This was a non-issue — something not even being considered, let alone supported, by all but a small minority of Americans — before a few rogue judges “found” the right to gay marriage hidden somewhere in the recesses of their state constitutions. The Defense of Marriage Act, which President Clinton signed into law after the House and Senate both passed it with more than 80 percent majorities, was an attempt to protect states from such lawless actions by other states’ judges. DOMA defines the use of the word “marriage” in all federal laws or regulations as referring to a union between a husband and wife, and it attempts to shield states from having to comply with other states’ — or their judges’ — contrary definitions.
Since then, DOMA, which the Obama administration has refused to defend in court, was struck down by another rogue judge, who amazingly declared 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.” This judge declared that DOMA’s support of marriage as a union between two complementary sexes as husband and wife was motivated “only” by “irrational prejudice” — which he claimed that the Fifth Amendment, written and ratified during the first (George) Washington administration, somehow forbids.
Anyone who thinks that other judges aren’t poised to nationalize this issue is kidding themselves. There are two — and only two — likely outcomes for the debate over the wisdom of redefining marriage in America: Either an amendment will be passed that effectively constitutionalizes DOMA and thereby prevents any states’ redefinition of marriage from becoming binding upon all the other states — while still allowing individual states to redefine marriage as they wish — or else the courts, and (you can bet on it) eventually the Supreme Court, will ultimately declare the redefinition of marriage in some states to be binding upon all the others.
That is the choice — and Romney is already on the right side of the issue.