Lines have been forming outside the Supreme Court building for a couple of days in anticipation of this week’s oral arguments on marriage equality. If constitutionalism and democracy were any guide to the Court’s deliberations, there would be little doubt of the outcome. Even with this Supreme Court, however, there is an easy solution: leave the issue of marriage equality to the states (where marriage law is determined) but strike down the inane Defense of Marriage Act (DOMA), passed during the heyday of right wing zealotry in the 1990s (and indefensibly signed into law by President Bill Clinton, who has reversed his position).
After all, it is difficult to argue that states should make the decision about who can marry, and then refuse federal benefits (including Social Security and veterans benefits) to those who have been married under the laws of their state. That states have the right to establish the parameters of marriage within their borders, but the federal government should be able to discriminate against lawful unions should be a ridiculous proposition, even for conservatives, and certainly for those federalists who lecture about the primacy of the states.
And, in fact, some conservatives have famously been rethinking their opposition to marriage equality, and earning plaudits for doing so. Not from me. Most recently, Ohio Sen. Rob Portman, now comfortably removed from consideration for the vice presidential nomination, announced his reversal on the issue, following the more cautious relaxation of positions on gay and lesbian issues by former Vice President Dick Cheney and former Speaker Newt Gingrich. In each case, a gay or lesbian family member was identified as the reason for the more tolerant views. There is something hugely offensive about an officeholder who is willing to embrace and exploit a policy position that sanctions discrimination … until it affects someone within his or her immediate family. If opposition to same sex marriage was wrong, with all respect to Sen. Portman, it was wrong regardless of Will Portman’s sexual orientation.
But at least give Portman, Cheney and Gingrich some credit: for personal, political or whatever reasons, they have inched towards ending discriminatory statutory treatment of millions of Americans. While most Republicans still fervently embrace policies that manage to offend virtually every expanding part of the electorate — youth, immigrants, women, and LGBT Americans — some leaders recognize this isn’t the way to embace your family or win elections. The shift in public opinion on LGBT issues in general, and marriage in particular, is nothing short of astonishing and illustrates why, once a public discussion of discrimination occurs, the survival of the offending policies is increasingly and thankfully brief. A majority of Americans are now supportive of same sex unions, and a new poll in the battleground epicenter of Ohio found support at 54 percent, just 9 years after voters there passed a constitutional amendment banning same sex marriage. Among voters under the age of 25, three quarters support gay marriage. No wonder Sen. Portman (R-OH) may feel a little more comfortable with his new-found views.
Other Ohio Republicans remain mired in the dark ages, and no one moreso than the highest ranking Ohioan in the nation, Speaker John A. Boehner. The Ohio Republican, dutifully reflecting the harsh views of his House GOP colleagues. remains unmoved, declaring that “marriage is the union of one man and one woman.” And why? Boehner explains, “It’s what I grew up with… It’s what my church teaches me.” Of course, there were also generations of Americans happy to deny equal protection under the law to tens of millions of African Americans based on how they were brought up and what their preachers instructed.
It would be one thing if Boehner’s obdurate orthodoxy impacted only his views, but he has used his enormous powers as Speaker of the House to go much further in defense of discrimination. And Boehner’s passion for doing so extends to a behavior for which he typically condemns Democrats: wasting tax money.
It is appalling that the same Republicans who go into a cost-cutting war dance to celebrate slashing meat inspectors and Head Start teachers have no problem laying out tax dollars to defend DOMA. That unwise decision came after the Obama Administration decided the law was unconstitutional and, following legal precedence by other Administrations with respect to such statutes, declined to defend the law further in the courts. Boehner then convened the House Bipartisan Legal Advisory Group (BLAG), a small group of the House leadership, to seek authorization to direct the House’s legal officer, the House Counsel, to step in to defend the law. And since that office was burdened with numerous other responsibilities, Boehner decided to authorize use of a few hundred thousand public dollars to hire a hard-line (though highly respected) conservative attorney to argue the case for the House.
Democratic members of the BLAG, who are naturally outvoted by the Republican majority, were astonished by the request and outraged by the decision. Both Democratic Leader Nancy Pelosi and Whip Steny Hoyer voted against authorizing the funds and have repeatedly written letters to Boehner denouncing the decision to waste of taxpayer money. To no avail. Not only did the BLAG pony up the money, and hire the high-priced lawyer, but Republicans dispensed with further meetings of the BLAG, renewed the contract and repeatedly increased the authorization of expenditures — now up to $3 million — without Democratic input.
This repeated upping of public spending on the defense of discrimination is even more astonishing since the Republican strategy has been spectacularly unsuccessful. Court after court has ruled against their argument on DOMA, setting up this week’s Supreme Court test.
Only the gods of irony could ensure that the DOMA argument, with the taxpayer-funded Republican attorney leading the charge, would occur at the same time Congress is passing budgets and Continuing Resolutions that reduce essential spending for education, health and a variety of other urgent concerns. All that is needed now is for the Supreme Court to confirm that this country will not abide intolerance, and that Republicans have squandered both tax money and claims to fairness by financing the defense of discrimination.