Sunday, December 18, 2011

My Evening Constitutional

One of my readers wrote to suggest that I was "slightly wrong" when I wrote about Bob Garon, the sixty-something gay Vietnam veteran who got all up in Mitt Romney's face a couple of weeks ago:
The U.S. Constitution doesn't say anything about marriage, so it's not correct to say that denying him marriage denies him his Constitutional rights.
My correspondent pointed out that while the Constitution says nothing about marriage,
neither does it say anything about sodomy, abortion, pornography, or, to go further afield, on whether a corporation is an individual - on all which subjects the supreme arbiters of "what is Constitutional" (spec. the Supreme Court) have found interesting things to say, based of course on their interpretation and application of the tenets of the Constitution to latter-day affairs. In Loving v Virginia, for instance, (if memory serves) the Supremes found that marriage was a "fundamental right". The 14th Amendment would seem to necessitate equal rights for all, and the DOMA cases now working through the courts would seem to be testing the applicability of this proposition to gay people and their marriages. Mr Garon might be blamed perhaps for jumping the gun as to whether he has a federal constitutional right to marry and remain married to his partner and to have that marriage recognized by the Federal Government. But it is only by the assertion of a right that anyone anywhere at all can find out if that right exists.
Damn! My correspondent even forestalled my objection that Garon asserted a Constitutional right that, so far, he doesn't have. The Supreme Court has already ruled on abortion, pornography, "racially" mixed marriages, and sodomy, so we can probably assert our rights in those areas. And it's true, Bob Garon or anyone else can assert a right whether the courts have ruled in its favor or not. Looking over his statements, though, I see that he misunderstood or misrepresented Romney's claim -- Romney didn't say that the Constitution says anything about marriage -- and is really in no position to complain that Romney "doesn't know about the Constitution." I'm no Constitutional scholar either, but the Constitution doesn't seem to have anything to say about equality in the sense Garon is talking about; where the word "equal" occurs, it doesn't refer to legal equality. But I should have written that sentence in the original post more carefully, and I sit corrected.

I still insist that "rights" terminology is being thrown around too freely in this debate. Garon, like many gay people, talked as though he thinks the benefits of marriage are rights. The question is whether same-sex couples should receive the same benefits and privileges that mixed-sex couples do, and they should. But as I and others have argued before, it's not clear why those benefits and privileges should go only to "married" couples, since we have the precedents of domestic partnerships and civil unions. Many of the horror stories -- the loss of shared property, a partner of many years reduced to penury, the custody of jointly raised children, couples separated by immigration status, and so on -- will still be told after same-sex marriage is a legal fact. Heterosexuals are voting against marriage with their feet, and have been for decades, a fact that annoys many advocates of same-sex marriage. Not even all same-sex couples will want to marry, but that doesn't mean they should have to spend thousands of dollars on powers of attorney and other instruments to protect themselves. You shouldn't have to get married to get health care, or to enter or leave the US, or to stay home with a sick friend or visit him or her in the hospital. For all that they claim to take marriage seriously, same-sex marriage advocates seem to be bent on trivializing it.

But I believe I've caught my correspondent here, though I'd return the favor and argue that he's only "slightly wrong" about it:
As to your larger point about Obama, this is of course true. But my reading of the tea-leaves is that he's waiting for a DOMA case to be ruled in the plaintiff's favour, and amidst the resulting brou-haha from the Right to announce his final evolution in favour of "marriage equality" (the neologism I expect him to use). At that stage he will have nothing electorally to lose from the declaration.
At this point I'd agree that Obama is waiting for a DOMA case with the right (or "right") outcome, which is probably the right course of action for him in any case, since it isn't the Executive's prerogative to overturn bad laws. But don't forget that for the first two years of his presidency Obama was defending DOMA in the courts. It's also important to remember that he is personally opposed to same-sex marriage on religious grounds, an opposition that predates his campaign for the presidency. One reason it would be fun to watch Garon confront Obama on this issue is that Obama is a Constitutional scholar who clearly doesn't think that the Constitution guarantees a right to marry: he's willing to leave it to the states.

But to repeat, I was slightly wrong in my criticism of Bob Garon, and I'm glad to acknowledge it.