The Courts And Gay Marriage [Eric]

I completely agree with you, Stephen, that Roe v. Wade was a huge mistake, taking an important political question out of the democratic arena on the basis of some very shaky legal logic. We'd be better off if it had never happened. The trouble is that at this point I'm not all that sure we'd be better off with the alternative, overturning it, which could itself cause a whole lot of social and political upheaval. And then there's the huge risk that a right-wing court might swing the pendulum the other way, declaring a constitutional right to life for an embryo and outlawing all abortions entirely. Basically, we're in the toilet no matter what we do.

As for gay marriage, the issue is complicated by the modern scientific consensus, finally spreading throughout the general public, that homosexuality is for the most part an in-born trait. And that means failure to include gays in our social institutions really does become a civil/human rights issue. And as much as I'd hesitate to impose gay marriage in places like Kentucky or Missouri, there is a serious human rights question here.

Take Brown v. Board of Education. Without a doubt, it was a counter-democratic decision that foisted racial integration on a majority that didn't want it. But it was simply the right thing to do, finally backing up promises made in the 14th Amendment that the politicians were simply not going to actually make good on. Can you honestly say that if you could go back in time, you would prevent it from happening?

As for gay marriage, I guess I'm in favor of the approach we're on, of letting individual states fight this out under their own constitutions, and have the federal courts defer any judgment on it.

DOMA, however, presents a huge problem with even that moderate approach, in that the federal government refuses to recognize relationships that are fundamentally created by the states. And as for giving permission to states to ignore other states' gay marriages, that's just loony. If the states have the constitutional ability to not recognize gay marriages from other states due to political reasons and by the way, I think they do have some loopholes on Full Faith and Credit to do just that then they don't need the federal government's permission. And if they don't have that constitutional ability under Full Faith and Credit, then the feds can't legally grant it to them by statute.

So I guess my bottom line stance on this for the foreseeable future, is to have the federal government take no position at all. This means no federal court decisions, no DOMA, no constitutional amendments, no nothing. If a state court grants gay marriage rights and the people don't like it, they can amend their constitutions. But if a state court pushes on the issue and the people turn out to be fine with it, so much the better. It's certainly not a perfect approach, but I really do think it's the best we can do for now.