Some who support same-sex marriage are still honest enough to find problems with the way courts and the Obama administration are chipping away at the definition of marriage.
Richard Epstein supports same-sex marriage, but finds multiple legal problems with two recent court decisions in Massachusetts. His article in Forbes.com outlines lapses in the judicial reasoning that found the federal Defense of Marriage Act (DOMA) unconstitutional.
Epstein also notes the lack of support the Obama administration’s Department of Justice gives to DOMA law the president is sworn to uphold—along with the rest of U.S. statutes. He writes,
This controversial case might well go up on appeal. But if so, it looks almost like collusive litigation, unless some true defender of DOMA is allowed, as an intervener, to defend the statute on the merits. As a supporter of gay marriage, I still think that the DOJ’s faint-hearted advocacy is no way to run a legal system. Nor is it wise for courts to use the Equal Protection Clause as a club against conventional morality, deeply felt.
He concludes,
We don’t need a judicial precedent that will spark a nation-wide rerun of California’s Proposition 8. We need courts to back off to democratic processes, imperfect as they are.
Whether or not we like the outcome, the democratic process is where the confidence of Americans resides for determining the issues on which we disagree. Unfortunately, this president and his administration are undermining that confidence—and it is not just conservatives who see this.
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