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O P I N I O N
Subverting the Dominant Paradigm
David J. Millstone • Why neither the Right nor Left got the DOMA question correct • 1997

The Defense of Marriage Act (DOMA) sparked a political tantrum on this campus of the sort rarely caused by national legislation. The debate pitted a hypocritical Left against a moralizing Right, and, if it tells us anything, it should remind us that our enemy’s enemy is not necessarily our friend.
The first thing one notices is that the debate occurred without reference to the legislation. Both sides took it up simply as a chance to weigh in on the morality of homosexuality. So the Left gave us creative (and not-so-creative) versions of its platitude, “Men love men,” and the Right returned with half-baked biblical incantations. Now, while it seems of unfading interest to Co-op members to remind Yalies at large that men do in fact sleep with other men, this is not the issue.

Yalies are, as always, more than willing to put in their two cents, but few know what the legislation says or does. In her Herald column, Rachel Trousdale asserts that the act “forbids any state from recognizing a partnership existing between anyone but a man and a woman as marriage.” Actually, DOMA says nothing of the sort. Rather, it simply allows each state to decide for itself whether or not to recognize gay marriage: “No State… shall be required to give effect to any public act, record or judicial proceeding of any other State… respecting a relationship between persons of the same sex that is treated as a marriage…”

The distinction is essential. The law does not limit state action. Rather, it ensures that the democratic process of one state is not subverted by a panel of judges in another state, specifically in Hawaii, whose judiciary is on the verge of legalizing same-sex marriage. Whether or not this law is constitutional, it certainly doesn’t prohibit states from recognizing same-sex marriage, democratically or otherwise.

Leftist resistance to this legislation demonstrates one of the great ironies of modern liberalism. Students who oppose the legislation consider themselves to be, for the most part, “democrats,” yet work from anti-democratic principles. The fundamental question of DOMA is whether justices in one state should be able to override the democratic process of another.

Liberals (especially those at Yale) know that Americans in general do not agree 
with them. In practice, they put their trust in an intelligentsia—the federal judiciary—whose sensibilities, they believe, are not as vulgar as those of the demos. But no one is going to admit this. Liberals betray their mistrust of the people by consistently siding with the judiciary.

This is not to say that modern liberals have any reason to trust an uninformed populace, but the hypocrisy of the constantly heard mantra of Democrats as champions of the people is a bit stifling.

The second irony is that, to the extent that DOMA was treated as a constitutional issue, people on the Left leaped to condemn it as a violation of the Full Faith and Credit clause of the Constitution. It may be, but this is more of a controversial legal claim than a rallying cry. It requires a strict reading of Article IV to find that if one state legalizes marriages resulting from polygamy, pedophilia, incest, etc., then the other 49 must recognize them as well, and the federal government is to be powerless to intervene.

Still, the argument would be thought-provoking if it were not so hypocritical. It is the Left that has, at every opportunity, subverted the Constitution to democratic will, necessity, fairness, penumbras, whatever. It is Democratic heroes like Roosevelt who taught us that the Constitution must bend whenever the people demand it. The irony is rich.

Now that the tables are turned, the Left finds itself a victim of its own accomplishment. If the Constitution means whatever we want it to mean, then it means nothing at all. This leads to the fundamental paradox for the down-with-DOMA crowd: the Constitution may require every state to recognize the marriages of another, but it also accords only 22 responsibilities to the federal government, none of which is to “administer welfare” or to “provide health care.”

But while the Left may be hypocritical and opportunistic, the Right is merely bigoted. Instead of taking this as an opportunity to defend the much-neglected concept of federalism by ensuring that power is decentralized, conservatives have taken a gay-bashing tactic which appeals to the very conservative and the very ignorant—the latter group being much larger than the former. It is no wonder liberals are skeptical of democracy when they see people with signs reading, “God hates fags.”

Today’s Right is obsessed with making people live virtuously, by any means necessary. The irony is now that conservatives have a modicum of legislative power, they are using it to do exactly what they once criticized liberals for, namely, micromanaging people’s lives from Washington. Like looters in a riot, they have a vague distaste for their own methods, but so long as everyone else is doing it….

It’s not that DOMA is bad law; rather, what is disturbing is the insidious intent behind it. Consider the name, “The Defense of Marriage Act.” The name belies its supporters’ motives—not to allow states to approach this question in a democratic fashion, but to do everything remotely within federal power to prevent states from recognizing same-sex marriage. How hard is it to believe that the bill’s supporters, had they the power, would ban same-sex marriages as a matter of national policy?

Both sides have lost sight of federalism, the principle which DOMA essentially represents. Instead of brawling at the national level, Right and Left might content themselves with diversity (liberals shouldn’t have too much trouble with this) in American government. Federalism allows us to coexist harmoniously without being homogenous.

True liberals should be uncomfortable with the tone of both the local and national debate. DOMA is good law, but listening to conservatives defend it, one would not be inclined to think so. And DOMA may be unconstitutional, but listening to liberals interpret the Constitution, one would never know why.

—David J. Millstone, Editor-in-Chief

 

   
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