And the story continues. Attorney General Eric Holder announced recently that the administration will no longer defend DOMA. An option, in my opinion, well within their prerogative. Holder suggested that the House take up the defense of DOMA in a recent letter. Rick Santorum suggested that Speaker John Boehner appoint counsel to defend the law. And Boehner has said he hopes to reach a decision soon. OK. This is certainly an issue that matters to many people but the current situation certainly looks like political theater from all perspectives.
DOMA is intended to allow each state to decide for itself what their definition of marriage will be and allow them the right to deny marriages not meeting that definition. This is accomplished by carving out an exception to the Full Faith and Credit Clause.
As a concept I support the idea. I like the states getting to decide for themselves by using the democratic process. However, imo, DOMA is not a good law. Not good in the sense that I don’t think it would survive a constitutional challenge. Why? The notion that Congress can carve out such an exception may have precedent; or it may not. My gut tells me Congress may not and my laziness permits me to avoid digging. Much more important than my opinion of the law is my opinion of the Supreme Court. I suspect that four Justices on the left will elect to strike the law and that Justice Kennedy will join them. Because of the questionable constitutionality of the law, I do not support DOMA.
However, I do support an amendment effecting the same result for the same reasons. Why? Because that would settle the issue, once and for all, through the democratic process rather than through the progeny of various judicial opinions that will result in a protracted societal conflict. The benefit of the former course is that 50 incubators will produce various results; both good and bad. We can imitate the good and discard the bad on the road to ever broader consensus through our own choices rather than have one imposed by the courts. Such rulings have the tendency to create sore feelings and long memories. They entrench the positions of the passionate and extend the war of ideas beyond its natural expiration date. We should rely on the people more and on the judiciary less.