I generally do not agree with much of anything that columnist Charles Krauthammer has to say on almost any topic. The man drinks far, far too much of the far right Kool-Aid to be considered a rational conservative. Hence why it is so stunning that I agree with his column today in the Washington Post which advocates for nationalizing gay marriage now. Truth be told, taking gay marriage off the table for debate would be a huge boon for the Republican Party notwithstanding the sheets of flying spittle and abject batshitery that would erupt from the Christofascist ranks of the GOP. Here are highlights from his column:
[I]n the DOMA decision, the court added a second rationale: equal protection. In states with same-sex marriage, Washington must give the same federal benefits to gay couples as to straight couples because to do otherwise is to discriminate against the gay couples. After all, they are equally married in their states. For Washington to discriminate against them is to deny them equal protection of the laws. Such discrimination is nothing more than irrational animus — and therefore constitutionally inadmissible.
[B]ut if the argument is equal protection, one question is left hanging. Why should equal protection apply only in states that recognize gay marriage? Why doesn’t it apply equally — indeed, even perhaps more forcefully — to gays who want to marry in states that refuse to marry them?
If discriminating (regarding federal benefits) between a gay couple and a straight couple is prohibited in New York where gay marriage is legal, by what logic is discrimination permitted in Texas, where a gay couple is prevented from marrying in the first place?Which is exactly where the majority’s second rationale leads — nationalizing gay marriage, the way Roe nationalized abortion. This is certainly why David Boies, the lead attorney in the companion Proposition 8 case, was so jubilant when he came out onto the courthouse steps after the ruling. He [David Boies]understood immediately that once the court finds it unconstitutional to discriminate between gay and straight couples, nationalizing gay marriage is just one step away.
So why didn’t Justice Anthony Kennedy, the traditional swing vote who wrote the majority opinion on DOMA with the court’s four liberals, take that step? Why did he avoid doing the full Roe — nationalizing the procedure in question and declaring the subject now closed? I suspect he thought it would be a bridge too far. At least for today.
But he knows that the double rationale underlying his DOMA opinion has planted the seed for going Roe next time. It was prudence, not logic, that stayed his hand. “The only thing that will ‘confine’ the Court’s holding,” wrote dissenting Justice Antonin Scalia with a bit less delicacy, “is its sense of what it can get away with.” Next case — Kennedy & Co. go all the way.
Krauthammer is correct. Given the Court's finding of anti-gay animus as the only real motivation behind DOMA and that it does actively harm same sex couples and their families, one does have to ask why the Supreme Court did not do the right thing and make gay marriage national. By not doing so, it is guaranteed that (i) there will be much further litigation and (ii) same sex couples in states like Virginia will experience real harm and a deprivation of equal rights.
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