The importance of judges

Judges have assumed a role in our constitutional system that the Framers could not have envisioned. This is in large part due to the abdication of authority that rightly belongs to the legislative and executive branches to the judiciary. The election, comments by Senator Specter, and recent events bring into sharp relief just how crucial the decisions on judges will be in the next few months.

In the midst of the euphoria over the sweep of eleven marriage amendments in the states on Tuesday comes news that one of the amendments, in Oklahoma, as well as the federal Defense of Marriage Act, are being challenged in federal court as a violation of the Equal Protection Clause.

There was a time during the debate over the Federal Marriage Amendment when supporters of same-sex marriage, and some respected conservatives, claimed that principles of federalism buttressed their arguments that the FMA was unnecessary. They stated that enactment of a federal constitutional amendment would prevent the states from acting as "laboratories of democracy," and that instead, each state should be free to make its own decision about whether to permit same-sex marriages.

Here is Senator Barbara Mikulski's floor statement during the debate on FMA: "Congress in 1996 spoke on this issue. They passed something called the Defense of Marriage Act. What this legislation did was define marriage between a man and a woman. It also allowed each state to determine for itself what it considered marriage under its own state law, leaving the concept of federalism intact." Many of the Republicans and conservatives who voiced opposition to the FMA claimed that the federal DOMA was all that was needed to protect states from being required to recognize another state's same-sex marriage. Former Representative Bob Barr (R-GA) stated, "The Defense of Marriage Act [DOMA] goes as far as is necessary in codifying the federal legal status and parameters of marriage. A constitutional amendment is both unnecessary and needlessly intrusive and punitive." And in the same release Rep. Ron Paul (R-TX) is quoted as saying, "the Defense of Marriage Act, passed in 1996, explicitly authorizes states to refuse to recognize gay marriages performed in other states. . . . So a constitutional amendment is not necessary to address the issue of gay marriage, and will only drive yet another nail into the coffin of federalism."

These arguments, however, usually ignored two critical constitutional arguments -- the Full Faith and Credit Clause and the Equal Protection Clause, as enunciated in Lawrence v. Texas.

Now that eleven additional states have made decisions not to permit same-sex marriages, those same gay-rights advocates are now claiming that the federal Constitution does not permit those states to prohibit same-sex unions. The "laboratories of democracy" argument was simply a ruse.

This lawsuit will undoubtedly cite Lawrence, the 2003 U.S. Supreme Court decision striking down Texas' sodomy law, in support of its claim. While the majority in Lawrence tried to sidestep this issue by stating that the opinion "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter," that was merely a fig leaf. The support for the current lawsuit comes from a passage earlier in the opinion.

The Court, citing a previous decision, "confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. . . .

"'These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.'"

"Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do."

The "mystery of human life" language notwithstanding, it is difficult to believe that a lower court, faced with the competing interests of a "public policy" exception to the FF&C Clause, and this language in Lawrence, would conclude that a "public policy" exception trumped matters the Court claims are "central to the liberty protected by the Fourteenth Amendment."

As Justice Scalia warned in dissent in Lawrence, "Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. . . . This case 'does not involve' the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court."

And so the battle has been engaged in Oklahoma. If the federal court overturns the DOMA and the new state constitutional amendment, will any of those conservatives who placed so much faith in DOMA so as to proscribe the need for the FMA acknowledge that in today's upside-down world of judicial supremacy, their confidence was misplaced? I won't hold my breath.