In his column in Forbes, the country's most respected libertarian legal scholar, Richard Epstein, defends DOMA against Judge Tauro's judicial activism and the Obama Administration's apparent "collusion" in killing off DOMA through judicial activism.
Although Prof. Epstein both favors SSM personally and opposes DOMA personally (he's not only pro-gay marriage, he's pro-polygamy!), he recognizes something is seriously wrong when a judge like Tauro takes the law and the Constitution into his own hands:
Justice Antonin Scalia, prescient in dissent, noted that courts would find it hard to draw a principled line between the two. In Gill and Massachusetts, Judge Tauro didn't even try. Rather, he pushed hard in two inconsistent directions. He first claimed that the definition of marriage was exclusively a function of state sovereignty, . . . Indeed, he went so far to make the weird claim that even the federal power to tax and spend did not allow it to define marriage for the purposes of federal expenditures.
Epstein goes on to note:
This novel Tenth Amendment argument looks to leave those states that reject gay marriage in the clear. But not really, for at the same time Judge Tauro also claimed that the Equal Protection Clause, which in 1967 was used to strike down state antimiscegenation laws in Loving v. Virginia, invalidated any state ban on same-sex marriage. . . .
Nor, as it turns out, could the federal government keep DOMA as it applies to federal benefits. More legal magic. In Bolling v. Sharp, the companion case to Brown v. Board of Education, the Supreme Court held that the Equal Protection Clause that binds states under the Fourteenth Amendment had to be read into the Due Process Clause of the Fifth Amendment that binds the federal government. . . .
Congress advanced four such justifications for this statute. . . . The Justice Department disavowed them all. So much for tradition. Its sole defense of DOMA was that it was needed to preserve the status quo until matters were sorted out politically. Given that open invitation Judge Tauro concluded that all of the justifications offered in DOMA flunked even the lowest "conceivable" standard of rationality. Religious people will surely take umbrage at his one-sentence rebuttals of centuries of tradition.
This controversial case might well go up on appeal. But if so, it looks almost like collusive litigation, unless some true defender of DOMA is allowed, as an intervener, to defend the statute on the merits. As a supporter of gay marriage, I still think that the DOJ's faint-hearted advocacy is no way to run a legal system. Nor is it wise for courts to use the Equal Protection Clause as a club against conventional morality, deeply felt.
Prof. Epstein concludes, "We don't need a judicial precedent that will spark a nation-wide rerun of California's Proposition 8. We need courts to back off to democratic processes, imperfect as they are."
5 Comments
People of faith are still free to refrain from engaging in homosexual acts or same-sex marriage, if they believe those actions are against their faith beliefs. But they are not free to impose their religious beliefs on normal, rational people. That's why the founding fathers prevented the creation of a Christian nation and specifically forbade the federal government from taking sides in any religious debate.
Jeffrey
Your comment is nonsensical. No one has ever claimed that people will have to engage in conduct they find immoral or undesirable.
The concern is that the first amendment rights of people of faith may be infringed.
The first amendment reads, in part:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
You seem to be familiar with the first part but not the second... The free exercise thereof.
For example, although abortion is now considered a constitutional right, no physician is forced by law to go against his morals to provide one.
That is the concern. Even for people like myself who are not religious.
Anna,
Your post makes no sense. No one who believes that gay marriage is against their religion will be forced to marry someone of the same sex. Just as divorce is against Christian beliefs, Christians had to learn that others may want to divorce, so society makes divorce available to non-Christians, and to Christians willing to violate their faith beliefs for personal happiness or gain.
That this article makes the hysterical observation that a judge "took the law into his own hands" is comical beyond belief. That's a judge's job: to discern the constitutionality of laws. Many laws are struck down as unconstitutional. That's not judicial activism, but rather a judge doing his or her job.
Jeffrey,
The religion debate is a sideshow. Any belief can be deemed "religious" for the purposes of excluding it from political debate. Suppose an atheist conservative opposed gay marriage--and perhaps homosexuality generally, for reasons completely unrelated to religious dogma?
Incorrect. The question here is not about whether gays ought to be allowed to do what they wish--that was appropriately settled by Lawrence v. Texas--but whether the state must be required to subsidize a particular contract relationship between individuals.
Marriage is not simply a relationship between two individuals that is recognized by the state, it is a complex area of law that evolved over centuries with particular reference to the male/female paradigm. Further, many states, if not all of them, subsidize marriage through tax incentives and related benefits, which takes it farther out of the realm of "free choice."
To the extent that society is being asked to support something, not simply to allow it, Professor Epstein is quite correct in that this decision must be made democratically.
Judicial activism is a judge replacing the law with his own policy preference, as Tauro did in his written opinion.
The SSM campaign, in court and elsewhere, depends utterly on double standards so blatant that sometimes even ardent SSMers like Epstein and Rauch turn crimson with embarrassment and feel compelled to object on principle.