For years, the left has claimed that they want marriage to be a state issue. But now the rubber has met the road on gay marriage, with the Obama administration issuing a request to the Supreme Court to strike down President Clinton’s Defense of Marriage Act, which allowed states not to recognize same-sex marriages performed in other states. Solicitor General Donald Verrilli now says that DOMA must be struck down under “the fundamental guarantee of equal protection.”
Of course, that assumes that legislation protecting traditional marriage violates equal protection clauses under the Constitution, an absurd position that suggests that all laws that affect people disproportionately are somehow unconstitutional. Marriage laws are perfectly neutral – men can marry women, not men. That is true for gay men and for straight men. The fact that the law does not have equal impact on straight men and gay men is of no concern under the Constitution. All laws have variant impact on different people. In fact, the Obama administration argues precisely that when they say that Obamacare regulations forcing Catholic businessowners to pay for health insurance covering contraception is not unconstitutional.
Verrilli’s brief continues: DOMA, he says, “denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples.” But state law cannot dictate federal law. This is the logical equivalent of saying that federal marijuana laws are unconstitutional because they deny to tens of thousands of legally prescribed medical marijuana users under state law the benefits of federal Medicare reimbursement. Federal marijuana laws may very well be unconstitutional under the Constitution. But that rationale just doesn’t wash.
But the truth is that the Constitutional challenge being brought by the Obama administration here has nothing to do with the Constitution. It has to do with legislating from the bench, and leveraging state laws in places like California to overthrow state laws in places like Texas. Striking down DOMA on the grounds articulated by the Obama administration is a recipe for federalized same-sex marriage by judicial fiat.
Ben Shapiro is Editor-At-Large of Breitbart News and author of the book “Bullies: How the Left’s Culture of Fear and Intimidation Silences America” (Threshold Editions, January 8, 2013).