A few weeks ago, the Obama administration's legal experts at the Department of Justice determined that the Defense of Marriage Act, DOMA, is unconstitutional. That meant not only that prohibiting gays from marrying is morally wrong, but that it is legally indefensible for one state to deny a gay marriage performed in another state. The legal argument comes in two parts. One is kind of technical. The other is really, really technical, esoteric to the point of becoming arcane.
The technical part is actually clear as crystal. The US Constitution has a provision that says arrangements made under the laws of one state have to be honored in all states. It's called the Full Faith and Credit Clause. Ever lie awake at night worrying about why so many companies are incorporated in Delaware? Yeah? Then you probably have problems that cannot completely be addressed here. But let's at least remove that one issue from the nocturnal meanderings of your restless mind. Delaware taxes corporations at such a low, low rate that establishing a corporation in those borders is very advantageous to profit making enterprises, even if they do no business at all in Delaware. In fact, it's a steal. Delaware makes a lot of money by engaging in what pastors call sheep stealing. Other states would grind their teeth in anger over it, if they had teeth. But there is nothing they can do about it. The Full Faith and Credit Clause would hit them between the eyes if they tried.
A few decades ago, several states made it against the law for interracial couples to marry, a legal status quo ante a plurality Republicans in Mississippi want us to return to. Before that sort of discrimination was outlawed by the feds, such states were compelled to respect interracial marriages between couples originally married in another state. "You can't do that in these parts," racists said. Interracial couples answered "Full Faith and Credit. So there." Racists said, "Huh?" then burned crosses and lynched some folks. But, hey, the law is the law. And federal troops can be pretty tough. So the arc of the moral universe was helped by the same Constitution that once protected slavery.
Fast forward to 2011, where the legal folks at the Justice Department told the Obama administration about Full Faith and Credit. They pointed out that it meant DOMA is unconstitutional. Technical, but real clear law.
The other argument, the Ethereal Cereal that obscurity eats for breakfast, holds that the definitions of "marriage" and "spouse" are problematic. Attorney General Holder issued a stirring declaration that will ring through all of American jurisprudence. "...given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny," and defining a spouse as a member of the opposite sex "fails to meet that standard and is therefore unconstitutional." Wow. Gay activists were joined by people of good will in celebrations and marches, as a new contrapuntal chant was joyfully sung:
"What do we want?"
"A more heightened standard of scrutiny!"
"When do we want it?"
In essence, Holder was telling us that you can't just deprive someone of a basic right without some compelling reason. And that reason had better be seriously compelling.
The Obama administration is obligated to decline to defend a law it has determined to be unconstitutional. But Congress can take on the defense itself. In fact, a lot of conservative groups demanded exactly that. The Southern Baptist Convention was typical, urging Congress to instruct "its own legal team to take up the administration’s vacated role in defense of DOMA in the federal courts."
Problem here is the argument was too hard for the Republican Leadership's own legal team to make. The most seriously compelling reasons are:
- It's tradition, and we cannot change tradition no matter who gets hurt.
- God told us to condemn gays right there in Leviticus, right next to where it says to kill disobedient kids.
It would take some extraordinary legal talent to make those arguments into compelling reasons to deny basic rights. The Republican legal team simply wasn't up to it. So they hired outside help. They didn't settle for big guns. They went with the Guns of Navarone in legal talent. The firm of King and Spalding is the mushroom cloud of legal representation, an international partnership operating in the US, Europe, the Middle East, and Asia. The Republican leadership hired them for a cool half million dollars. It was worth it. These pinstripes can argue that a house fly is actually a flying house and make it stick in court.
But yesterday, King and Spalding gave it up. They announced they just can't do it. The very best and brightest of shyster lawyers aren't up to it. They simply cannot make the necessary presentation in court.
Not without laughing out loud.
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This really should not be a government issue at all, despite the fact that I do have moral concerns regarding the misappropriation of the term and sacrament of marriage when used by gay couples.
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