June 30, 2013

Commentary: DOMA ruling upholds what voters believe

Conservatives are wrong to say the court's decision on gay marriage defied the will of the people.

WASHINGTON - Once again, the Supreme Court has infuriated conservatives. They say the court's decisions in United States v. Windsor and Hollingsworth v. Perry -- voiding part of the federal Defense of Marriage Act and disqualifying the petitioners who sought to reinstate California's ban on gay marriage -- override and disrespect the will of the people. But the will of the people isn't what it used to be. In states where voters once passed ballot measures against same-sex marriage, they now support it. The country as a whole supports it. The court, in striking down what voters believed 10 or 20 years ago, is upholding what voters believe today.

Shortly after the court's opinions were released, House Republicans held a news conference to denounce the rulings. They argued that marriage policy should be made by "elected representatives instead of unelected judges." The problem is that in this case, California's elected officials -- its governor and attorney general -- refused to defend the state's ban, which voters approved in a 2008 referendum. At the news conference, Rep. Doug LaMalfa of California decried this treachery. He said voters lose faith in democracy when they're abandoned by "their elected officials, like an attorney general in California that refused, because of politics, to defend what the people had done."

That's an odd complaint. When elected officials play politics, they generally comply with the people's will. And that's what happened in California. In 2008, as the National Organization for Marriage notes, "Proposition 8 was passed with over 52 percent of the vote." But in the most recent Los Angeles Times poll, taken four weeks ago, Californians affirmed, 58 to 36 percent, that "same-sex couples should be allowed to become legally married." The state's leaders have abandoned what Californians thought five years ago to support what Californians think today.

Another speaker at the Republican news conference, Rep. Tim Walberg of Michigan, accused the court of "taking away the voice of the people." He boasted that "in my state, we have clearly defined marriage to be that relationship between a man and woman." That's true: In 2004, 59 percent of Michigan residents who cast ballots on a proposal to forbid gay marriage voted for the ban. But a campaign is now under way to repeal the ban, and in the most recent Michigan poll, 57 percent of voters said they support gay marriage. Fifty-four percent said they'd like to replace the ban with an amendment authorizing same-sex marriage.

Rep. Michele Bachmann, R-Minn., declared at the news conference that "the people are more important than the Supreme Court." She said the court "undercut the people's representatives. When they (Congress) voted on the Defense of Marriage Act in the first place, the people were duly represented. They represented the will of their constituencies."

That was true in 1996, when DOMA passed. A decade later, when Bachmann, as a state senator, led the fight in Minnesota for a state constitutional amendment to ban gay marriage, she could still claim to represent the people: 54 percent of Minnesotans opposed legalizing same-sex marriage, while only 29 percent favored it.

But last fall, by 51 to 47 percent, Minnesotans voted down a ballot measure to define marriage as exclusively heterosexual. A month ago, the new Democratic-controlled legislature legalized gay marriage. Today, a tentative plurality of Minnesotans -- 46 to 44 percent -- supports that decision. That's an eight-point increase in support since the same question was asked in February.

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