NEWS BLOG (WSAU) Today’s blog is not about whether gays should have the right to marry. Today’s blog is about the 42nd President of the United States.
Bill Clinton penned an op-ed piece for the Washington Post arguing that the Defense of Marriage Act (DOMA) should be overturned. This is the federal law that Mr. Clinton signed in 1996. He now says DOMA is unconstitutional and should be struck down by the U.S. Supreme Court.
This is the poster-case for seeing the Constitution as a ‘living document’. (An important distinction here: DOMA is not a Constitutional amendment, it’s merely a federal law.) Clinton’s basic argument is that times change, and the mood of the country is different now than it was then. Yet he says the law is unconstitutional because it violates the equal protection clause, treating gay couples differently from opposite-sex couples. One would think the equal protection clause, with 300-plus years of history behind it, doesn't twist in the wind of public opinion.
This is not an equal protection case at all. It’s a state’s rights case.
Under federalism, rights that aren’t specifically granted in the Constitution are reserved for the states and individuals. And the Constitution is silent on marriage.
Is it practical to leave this decision to individual states? We have until now. States already have diverse marriage laws. 16- and 17-year olds can marry in some states with parental consent; they can’t in others. Nebraska has an age limit of 19; it’s 21 in Mississippi. Is a 20-year-old couple in Mississippi denied equal protection? You can legally marry your first-cousin in Georgia, but not in Pennsylvania. For many years Maryland didn’t require a marriage license, while Florida requires a 4-hour couples course before a license is issued. Any equal protection problems here?
If the people in some states determine that gay couples can marry, they will shape their laws accordingly. Other states may decide differently. States that favor gay marriage might also send representatives to Washington that reflect those views.
So what about DOMA, a federal (not state) law? If Bill Clinton is right, and public opinion is changing, he should propose a bill for Congress to repeal it. I wonder if the Supreme Court will be as unwilling to undo the will of Congress as they were in the Obamacare ruling. Clinton says he signed an unconstitutional law, and would like the courts to undo it. The truth is more complicated. Mr. Clinton signed DOMA in his first term. He did it because he knew the voters would not have reelected him if he didn’t. Did political expediency trump the Constitution, Mr. Clinton?