Threading the Moderate Needle on Same Sex Marriage

Attorney General Erik Holder seems to get stuck with the trickiest challenges. Yes, the debt ceiling, economy, and budget are no walks in the park. But as we’ve seen in the past, the two parties are often willing to each take money and walk away. And money comes on a sliding scale, so opponents can at least theoretically split their differences.

Holder and the Justice Department rarely have this luxury. You can’t half-way close Guantanamo or recognize 60% of gay marriages. These are all or nothing propositions with plenty of pressure (and statutory constraints) on either side. So they’re forced to press forward as best they can, relying on the principles of political moderation that are so essential to our justice system.

This caught my attention in a recent (and frustratingly brief) article in the New York Times about immigration and same sex marriage. Having announcing that it would not (in fact, could not) defend DOMA in certain federal appeals court circuits, the Justice Department now has to figure out what that means for its policy in deportation cases. On the one hand, it is still legally obligated to enforce DOMA, meaning that it can’t recognize same sex marriages for federal purposes. And since immigration is a federal matter, that means it can’t cite a same sex marriage as reason for allowing an immigrant to remain in the country. But what it can do, and I think this is what Holder has asked the Board of Immigration Appeals to do, is rule on whether that amounts to unconstitutional discrimination. So, he’s sent them a test case, that of Paul Wilson Dorman, to weigh those legal issues.

I suspect that Holder is no fan of DOMA. He’s already concluded that there’s no reasonable grounds for defending it where the standard is sufficiently high. It’s difficult to love a law you find indefensible. But he’s been very cautious about imposing that view. I suspect that’s because he has a firmly held loyalty to and faith in the legal process. If DOMA is indefensible, he expects that judges will rightly come to that conclusion as he is. When they do so, they have the authority to overturn it, or at least its application in various circumstances. In the meantime, he’s likely to upset both conservatives (who think he is bound to defend even the stupidest law enacted by Congress – he’s not) and liberals (who think that he should be recognizing same sex marriages despite the law as a matter of principle – he shouldn’t).

One Response to Threading the Moderate Needle on Same Sex Marriage
  1. Tony
    May 18, 2011 | 7:20 am

    This is really insightful, about how some issues can be compromised on via a sliding scale, but other issues are either or… Can’t be half pregnant, in other words.