More Thoughts On DOMA

I was thinking about using the Courts to get rid off DOMA as opposed to the Congress.  "Serious" people - who can best be defined as temperamental conservatives who think change might be good but can also be scary so no thank you - suggest that Congress should take the lead in repealing DOMA.

This is largely because the conventional wisdom is that if abortion had been legalized via legislative action as opposed to Roe v. Wade the issue of abortion would have magically gone away.  The Courts, in this line of argument, short circuited the will of the people and created an automatic backlash.  There may also be some unspoken thinking that Brown might also fall into a case of the Courts rushing ahead of the legislature.

I think that's wrong.  First of all, there would be no legislative movement on these issues.  Southern states would have never voluntarily ended Jim Crow.  Abortion would have become a patchwork of state laws with varying implications for women's health (not that different than it is now, frankly).

Sometimes the Courts have to lead.  Does anyone REMOTELY think that this House of Representatives is going to repeal DOMA?  To argue that ideally the Congress should lead on this issue is to endorse the status quo, which is discriminatory.  To advocate non-action on this issue is itself an action that reinforces discrimination.

I think there is also another reason why this is not Roe.  The majority of Americans have more than made their piece with Brown.  To the degree that we have racists in American public life, they have to guard their true colors.  Roe remains more controversial, but the fact is that a majority of Americans have made their piece with abortion.  The difference is that opposition to abortion is still acceptable, largely because there is a moral position in opposing it.  It's not a moral position I agree with, but I imagine the vast majority of anti-abortion Americans really do see the fetus as a living creature deserving of protection.  There is no comparable moral position on racial discrimination.

Which brings us back to DOMA.  DADT was going to be overturned in the Courts, I think, but it was helpful to have it hashed out in Congress so the Pentagon could do a managed, orderly, boring transition.  But DOMA will not play out that way.  If it is overturned (Justice Kennedy, we're looking at you), presumably there will be a lot more gay marriages.  Presumably, the full faith and credit clause will apply to Bob and Jim's marriage from Massachusetts.

And what is significant is that nothing will happen.  I used this yesterday, but it illustrates my point:

Brown took a long while to become accepted.  But we mostly do accept it now.  I think the end of DOMA will precipitate massive amounts of hot air on Fox and hand-wringing at the Washington Post.  But after a few years, people will shrug and say, whatever.

There will always be bigots.  There are those that oppose Brown because blacks people are subhuman, that oppose Roe because women should shut up and have babies and oppose marriage equality because fags should burn in hell.

But the simple fact of gays getting married - it's legal in my state - has become invisible to the greater population once the bill was signed and the first marriage certificate stamped with the notary's seal.  And so it will be with gay marriage everywhere else.

So, let's not cede the debate to the bigots and the blowhards.  LGBT people are going to get married.

Deal with it.