Supremes Speak: You Can’t Harass Love

by John Lawrence

Today’s dual 5-4 decisions on the Defense of Marriage Act (DOMA) and California’s Proposition 8 are welcome decisions with major political implications, especially for House Republicans.

The Court spoke decisively, if not overwhelmingly.  As is sometimes the case with legislators (who, like justices, read the political winds when making decisions), some are willing cast the politically sensitive vote when needed to reach the majority, and some will be happy that others took the risk.

One cannot help but speculate that Chief Justice Roberts (his reputation with the hard Right permanently impugned by his vote upholding the Affordable Care Act) and Associate Justice Kennedy decided to be the fifth vote on one decision each, but not the sixth on two.  Kennedy had the easier decision since DOMA was so ludicrously stupid and insulting, especially for a conservative who believes that traditional issues like marriage law to the states.  Roberts got to hide behind the issue of legal standing in writing the Prop 8 decision rather than passing on the merits of marriage equality, but the outcome is pretty much the same.

Despite the close votes, the message from the Court seems pretty clear: “Get this issue as far away from me as you can.”  States will do what states will do, and obviously, the federal government can’t sanction discrimination against a marriage lawfully recognized by a state.  The only drama now will be how fast states move to remove barriers to marriage equality, but given the decisions by various courts and the pace of change in public opinion, the number of states protecting marriage equality is likely to increase above 12 (plus D.C.) swiftly.

The implications for House Republicans may be more serious; today was a very bad day for them, and particularly for their Leadership which unilaterally decided to waste nearly $2.5 MILLION dollars on a top-flight conservative attorney to defend DOMA after the Obama Administration abandoned the law.  As noted in my blog on DOMA earlier this year, the House Republican Leadership hired Paul Clement , a former Solicitor General, to argue in favor of DOMA discrimination over the repeated objections of Democratic Leader Nancy Pelosi and Whip Steny Hoyer.  As Clement lost case after case in the courts, six in all, Speaker Boehner and his leadership kept upping the payments, all without a vote of either the Bipartisan Legal Advisory Group (BLAG), on which Pelosi and Hoyer serve, or the House at large.  So at a time when Americans are facing cutbacks on everything from education to nutrition to services for the elderly, House Republican leaders have a lots of ‘spalining to do about splurging $2.3 million on a tawdry quest to sanctify discrimination against millions of their fellow Americans.  Good luck with that!

But they have a bigger problem. 

Today’s decisions may effectively end the debates in the judicial system, but they are sure to fire up the conservative, holy-roller base which strikes dread into almost every Republican House Member in their neatly gerrymandered district.  Most House Republicans understandably live in terror of an even more conservative candidate filing against them in a primary.  That hard Right base, as certain as the sun will rise tomorrow, is going to demand legislative maneuvers to try to undo the Court’s rulings, something that even conservative legislators know is a fool’s errand and probably would like to avoid.  The same mindless strategists who have insisted on voting to repeal the Affordable Care Act three dozen times despite the Supreme Court’s decision in favor of the health law will surely be knocking on Speaker Boehner’s door very soon now, demanding that some ill-conceived, gay bashing bill be scheduled for a floor vote.  Republicans who beg off re-litigating DOMA or Prop 8 on the House floor might as well start planning their primary races for 2014.

 A small number of Republicans (not many, it should be noted) have recently embraced marriage equality – most famously in the Senate where they do not live in gerrymandered House districts that favor the hard line Right alternative in primaries.  Sen. Kirk represents a blue state and among Republicans, has a record of relative moderation.  Sen. Portman switched his views on marriage after announcing he has a gay son; not a sound basis for setting national policy, but good enough.  Sen. Murkowski – let’s just guess she couldn’t help sticking a finger in Sarah Palin’s eye. 

 Now, House Republicans need to choose between admitting defeat and acquiescing in marriage equality, or toadying up to their anti-gay primary voters and risk enhancing their already woeful image as intolerant ideologues.

   One last thought.  The history of Proposition 8 is a sterling example of the unintended consequences of political reform.   Innovations like the referendum, initiative (essentially what Prop 8 was), and recall were devised by Progressive Era reformers to circumvent the corrupt, money-influenced state legislatures and allow a state’s voters to take governance into their own hands. Years ago, I wrote about the dangerous morphing of these innovations into instruments that allow well-funded special interests to write self-serving and unsound laws with far less effort or expense than persuading a state legislature to do so.  In the case of Prop 8, the madness went even further, allowing a state’s voters to amend the Constitution, thereby ensuring that the Legislature would have extreme difficulty undoing a provision that might well do severe damage to the state and its residents.  For decades, Californians have had to endure fiscal crises because of Prop 13 and other special interest driven initiatives that crippled the state.  Nor is the damage done only by conservatives.  There were many occasions where liberal groups wrote complex initiatives that could never have made it out of a legislative subcommittee.  With special interest funding and clever, thematic titles that mask the details of the proposition, voters can get swept up into the frenzy and approve unbalanced and unfair laws and amendments.  But that is the subject for another column.