Thursday, May 17, 2012

Obama Isn't Abandoning Gay Marriage to the States

You don't have to be a lawyer to get this. But apparently a lot of commentators don't get it at all. When Obama said the issue of gay marriage has to be dealt with by the states, he wasn't consigning gay marriage solely to the un-tender mercies of the states. No indeedy.

In our system the states deal with marriage. Nothing in the Constitution enables the federal government to involve itself in marriage, and the federal government has only the powers allocated to it by the Constitution. HOW the states deal with marriage is, however, subject to Constitutional protection of our rights. Thus in the case of Loving v. Virginia in 1967, the U.S. Supreme Court ruled that a state ban on inter-racial marriage was unconstitutional because it violated the 14th Amendment's requirements of due process and equal protection in its impermissible racial discrimination.

But what about sexual discrimination? Is discrimination on the basis of sexual orientation forbidden by the Constitution? Right now California's Prop 8 case is possibly headed to the Supreme Court. A panel of the federal Ninth Circuit Court of Appeals has overturned the proposition's attempt to ban same sex marriage. Whether the case now goes forward to the Supreme Court is uncertain. Prop 8 and the Ninth Circuit opinion are both narrowly written to apply solely to California, and the US Supreme Court may see little reason to get involved and therefore deny a hearing. If the Court grants a hearing, it still has ways of narrowing its decision so as not to really address whether gays have a right to marry.

We don't know what will happen to the Prop 8 case, whether it will even get before the Supreme Court or what the Supreme Court will decide. But unless Obama is re-elected, we are surely going to see lots of bad decisions narrowing the rights of many of us. This is a sink-or-swim election for all, not just for gays. Two, and possibly three, Supreme Court seats are coming open soon. Bad as the present Supreme Court is (and its decision on strip-searches was outrageous!), it could be infinitely worse with Romney appointments.

Do you want Romney to make those appointments? Are you insane?

Obama believes that denying gays the right to marry is not only wrong but is unconstitutional. That's the grounds he cited in ordering the Justice Department not to enforce the federal Defense of Marriage Act (DOMA) which is anti-gay marriage and was enacted during the Clinton administration. Obama can halt applIcation of this federal law, but he can't do anything about the anti-gay state laws by trying to get a federal law to supersede them.  He can't suddenly remove marriage from the jurisdiction of the states. That's over-reaching on too colossal a scale, given our federated system. But he has made clear by his pronouncement on DOMA that laws, federal or state, must meet Constitutional muster regarding gay marriage, and that laws banning same sex marriage do not satisfy the Constitution.

That's all he can do. He can say what he thinks. Under our system, it's now up to the Supreme Court. It's not up to the president. "Leaving the issue to the states" actually means leaving it to the Supreme Court. If he pushes for a federal law  -  which he would never get through Congress  -   the resulting law would then become highly vulnerable to overthrow by the Court as an impermissible violation of state jurisdiction over marriage.

Actually the issue is up to YOU. You will decide the winner in this next election. You will thereby decide the makeup of the Supreme Court. The right of gay couples to marry is in your hands, as are the rights of all of us.

You stand now with the Minute Men at Lexington and Concord. In fighting for their freedoms, they faced the world's greatest military power. You face Karl Rove's super pacs and their $300 million campaign fund.

Oh, yeah, baby! The British are sure as hell coming! In the form of three more of Scalia, Alito and Clarence Thomas! So do a Paul Revere and WALK  -  do not ride!  -  a  precinct for Obama. Do it for the gay teenagers who escape the tormenting by killing themselves. Do it for all of us who prize our rights. Do it for your children.

Or this ain't gonna be the home of the brave and the land of the free any more. You betcha!

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