Equal Protection?

Some have questioned today's decision by the US Supreme Court to strike down the Defense of Marriage Act (DOMA) on due-process grounds rather than on the basis of equal protection. The former is narrower, in my opinion, and I agree with it. The Court has reaffirmed that discretion lies with the states, and has ruled only with regards to whether the federal government can strip away protection to a particular class, once granted.

I suspect that I differ from most of my liberal friends in that I agree with conservatives this far: recognition of gay marriage is a change in the understanding of marriage in our society. I just happen to believe that the change is a beneficial one, one that is consistent with and strengthens traditional values, and moreover only the most recent of very many more-substantive changes, ancient and modern. (I have been heard to quip that I support Biblical marriage: one man and one or more women, who are his property.)

It is useful and relevant to advocate for marriage equality on the basis of equal protection. I have done so and will continue to do so as an individual. But for the Supreme Court to make that same argument with the force of law is hard for me to agree with. It's clearly not true from an originalist perspective, and also hard to support from an "evolving society" perspective, given that gay marriage remains illegal in most states. It is not the business of the Court to declare what the law ought to be; it is to clarify the law as it exists already.

Some will argue that the Court today acted in a cowardly fashion, and on the wrong side of history. Perhaps. But for me, the consent of the governed is no small consideration. I'm heartened by the state-by-state momentum of the marriage-equality movement. My preference from political and governance perspectives is that that momentum should continue to play out.