District Court Judge Claudia Wilken of Northern California – a Clinton appointee, for the record – didn’t hand down a revolutionary ruling. It was actually the third such ruling by a U.S. district judge. If there were such thing as a three-strike law when it comes to constitutionality, then we could call it revolutionary. But if it finally prompts the Supreme Court to rule on the Defense of Marriage Act (DOMA), maybe we can.
Wilken ruled against DOMA on the ground that it unfairly prohibited same-sex couples from federal benefits that heterosexual couples can access, and that it was crafted by politicians with “animus” toward them. The usual suspects objected to her position, reminding her that everyone defines marriage as between a man and a woman! (Oh, yeah?) Her ruling is one that concerns equal protection; others, such as those involving California’s Proposition 8 striking down a previous same-sex marriage law, concern due process.
I have a hard time believing that anyone will get very far if they make the case for equal benefits on its own merits; that runs the risk of adding a fiscal facet to the discussion that could be used against proponents. So, let’s consider whether or not there is a federal right to marry whomever one feels like. Most people say no, as marriage isn’t mentioned in the Constitution. Not that the Supreme Court has never ruled on it before. Remember this?
Let’s turn back to the Constitution itself. I can name two amendments that ought to render DOMA constitutionally null: the Ninth and the Tenth. Also, the absence of an amendment giving the federal government the power to regulate relationships between consenting adult individuals. In fact, wouldn’t those constitute a form of peaceable assembly, as assured to the people by the First? I can think of no form of peaceable assembly that a social traditionalist would want to encourage more.
So, with the Constitution and the case law on the side of proponents of same-sex marriage, what do its opponents have left? That this isn’t the same thing because children need a mother and a father? Yeah, they tried that one to discourage mixed-race couples. That you’re rewriting thousands of years of tradition? That’s the way the world works. That lots of Americans disagree with it? It’s none of their business, really. That it’s an assault on religious liberty? Nobody’s making anyone agree with it. People disagree with individual gun rights constantly, but nonetheless they’re there.
I relish the thought of sending Wilken’s rulings and others to the Supreme Court and seeing what happens. If it sparks another one of those awesome American Life League PSAs in retaliation, even better.