Under the Defense of Marriage Act, the federal government does not recognize same-sex marriages even in states that have legalized it. This week, the U.S. Supreme Court ruled DOMA unconstitutional.
There are two possible grounds, distinct and in some ways contradictory, for doing so. The curious thing about the court’s DOMA decision is that it contains both rationales.
The first is federalism. Marriage is the province of the states. Each state decides who is married and who is not. The federal government may not intrude. It must therefore recognize gay marriage where it has been legalized.
If that were the essence of the argument, the court’s 5-4 decision would have been constitutionally conservative, neither nationalizing nor delegitimizing gay marriage. It would allow the issue to evolve over time as the people decide state by state.
It would thus be the antithesis of Roe v. Wade. That judicial fiat swept away every state abortion law that did not conform to the court’s idea of what abortion law should be. Even many liberal supporters of abortion rights have admitted that Roe was an unfortunate way to change the law. It prevented a stable social settlement of an issue, Justice Ruth Bader Ginsburg once said, that at the time was headed in the reform direction. The Roe ruling removed abortion from the political arena, thus disenfranchising the citizenry, tainting the resolution of the question and leaving us with 40 years of social strife.
On the face of it, the court avoided that disaster regarding same-sex marriage by adopting judicial modesty. Gay marriage? You, Washington, have no business meddling in state business. To those married and living where such marriage is recognized, you must provide the normal federal spousal benefits, etc. Otherwise, you don’t.
Good outcome. It allows popular sentiments on gay marriage to translate themselves democratically into law. Which in turn allows, in contradistinction to abortion, a political settlement of the question state by state. It may not satisfy everyone, but it does give everyone a voice in the disposition of the issue and a sense of the legitimacy of the outcome.