Saturday, June 14, 2014

Cut J.B. Some Slack

 
The hue-and-cry over same-sex marriage is unfortunately following the same dysfunctional political pandering as so many other issues of the day in American society with Democrats calling for a repeal of laws prohibiting it and the right-wing, not unpredictably, opposing that. 
 
The left, of course, had its energy fueled by such events as U.S. District Judge Barbara Crabb's decision striking down an amendment to the Wisconsin Constitution approved by voters less than eight years ago which declared that “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state."
 
Judge Crabb stayed her decision to allow the state to appeal which Atty. Gen. J.B. Van Hollen, a Republican, promised to do.  That subjected Van Hollen to a barrage of attacks from the left which in large measure blindly call upon him to shirk his duty to defend the state constitution. 
 
The task of defending Wisconsin's recently enacted same-sex marriage ban is perhaps easier for Van Hollen because it coincides with his own thinking but even if it didn't he is still duty-bound to defend it.  Yes, he's a political animal and no doubt politics has some bearing on this, but the left, including our own Peter Barca, the Assembly minority leader, need to cool their jets and bombastic rhetoric and allow the legal process to proceed.  That's the way we're supposed to do things in  the country and to suggest otherwise is to move us closer to the throws of anarchy.
 
Regardless of how you feel about gay marriage the reality is that it is not only a divisive issue in this country but one that needs to be settled by the U.S. Supreme Court, particularly because some lower courts, such as Judge Crabb's, have claimed that same-sex marriage prohibitions offend the United States Constitution.  In so doing they rely heavily on the 1967 U.S. Supreme Court decision in Loving v. Virginia, 388 U.S. 1 (1967) which invalidated a Virginia state statute prohibiting interracial marriage.
 
On its face, however, reliance on Loving may be flawed -- and that's precisely why Van Hollen must be allowed to do his job and, hopefully, the U.S. Supreme Court will rise to the occasion and resolve this. 
 
First, Loving involved the marriage of a man and a woman, not a same-sex marriage.  Although gay marriage supporters see that as a distinction without a difference there is credible legal precedent which holds otherwise.
 
The almost-forgotten 1972 case is Baker v. Nelson, a post-Loving appeal of a Minnesota Supreme Court decision which the U.S. Supreme Court dismissed in a one-sentence decision for lack of a substantial federal question.  That let stand the Minnesota Supreme Court's 1971 opinion that there is no constitutional right to marriage between persons of the same sex: "These constitutional challenges have in common the assertion that the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory. We are not independently persuaded by these contentions and do not find support for them in any decisions of the United States Supreme Court. The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis."  Further, reliance on Loving was rejected: "Virginia's antimiscegenation statute, prohibiting interracial marriages, was invalidated solely on the grounds of its patent racial discrimination . . . [T]o deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."
 
Baker v. Nelson remained "good law" but same-sex marriage was ultimately allowed in Minnesota because the state legislature in 2013 changed the statutes.  That can't happen in Wisconsin.
 
This discussion illustrates that Van Hollen is not just shooting off his mouth or shooting from the hip when he says he's doing his duty to defend Wisconsin's constitution.  His task is considerably different from our neighboring state.  In Minnesota, voters rejected a gay-marriage prohibition amendment to the state constitution so all it took to change course was a simple vote of the legislature.  Here Wisconsin voters amended the state constitution to outlaw same-sex marriages and thus our legislature's hands are effectively tied as is Van Hollen's.
 
Perhaps the U.S. Supreme Court will revisit Baker v. Nelson.  I think it should because either the decision needs to be reaffirmed or overturned.  No doubt Van Hollen's defense of the Wisconsin constitution pleases the political right and angers the left but regardless of politics at the end of the day he's just doing his job.

Gay marriage supporters need to stand down.  By appealing Judge Crabb's decision Van Hollen is doing them a favor. Although the 7th Circuit Court of Appeals in Chicago is the next stop eventually the case may wind up where it needs to be -- before the U.S. Supreme Court.  If the Constitution is on their side as they claim it is, then those who support Judge Crabb's decision should welcome this with open arms.