The Pro-Gay Marriage Ruling Conservatives Should Love

Categories: LGBT, Law & Order
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Today's pro-gay marriage ruling ought to resonate with Luke and Bo
Men with Confederate flag decals reading "Never Forget" on their gun-rack-equipped pickups and a fondness for "states' rights" don't seem like the likely demographic to support same-sex marriage.

Following today's unanimous ruling by the 1st Circuit Court of Appeals in Boston that the Defense of Marriage Act is unconstitutional, however, they may have to be -- or risk ideological hypocrisy.

Despite the hot-button issue of same-sex marriage, today's ruling actually trotted out a favorite conservative hobby horse. In narrowly deciding that states that allow same-sex marriage cannot be subsequently undermined by the federal government, the three-judge panel made a classic states' right argument.

"The decision says states should determine what marriage is, and the federal government should then accord states that dignity instead of saying, 'No, you can't do this,'" says Michael Zamperini, a constitutional law professor at Golden Gate University.

He likened this to conservatives' fuming that Obamacare violated states' rights by forcing their hands with relation to health care policy. When asked whether it would require some sort of ideological gymnastics to twist into a position where one can decry the federal government dictating levels of health coverage and also decry that same federal government not dictating the principles and benefits of marriage, he laughed and agreed.

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Today's ruling, he added, is very narrow. It doesn't mandate that states allow gay marriage -- it only mandates that the federal government must provide all regular marriage benefits in states already allowing same-sex marriage. It doesn't throw the entire Defense of Marriage Act on history's scrap heap. It only applies to the 1st Circuit in the Northeast. And the ruling is also on stay until the Supreme Court weighs in.

While many advocates of same-sex marriage have lost faith in the impartiality of the John Roberts court, Zamperini sees today's ruling as a potentially good sign. The three-judge panel is composed of one Bill Clinton nominee, one Ronald Reagan nominee, and one George W. Bush nominee -- "this isn't a flaming liberal type of thing."

This conservative panel produced "a very conservative opinion" -- a very conservative opinion preserving the rights of same-sex couples to wed and derive the benefits of marriage.

States have long had individual jurisdiction establishing the rules of marriage; this is why ages of consent vary across the nation, you can marry your cousins in some places but not others, and you can run to the Elvis Chapel of Love for a quickie wedding in Nevada but must wait longer most anywhere else.

Extending marriage and its benefits to same-sex couples, then, is part of this deal. Take it away, and who knows? Maybe they'll be coming next for the Elvis Chapel of Love.

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Most of my con law jock friends seem very pleased with the ruling.  To a certain extent, I am too.  My concern, however, is that the court clearly stated that "under a rational basis standard, the Gill plaintiffs cannot prevail" (p.14) and then proceeded to apply the "rational basis with teeth" standard, a standard which Justice Stevens implied would not be applicable to same-sex marriage.

In addition, a "federalism" argument might get is a SC victory, but we'd still be left with decades of state-by-state battles for marriage equality.


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