“BILL O’REILLY: Gay Marriage Opponents’ Only Argument Is ‘Thumping The Bible'”
Never one not to stick his fingers into the political winds in order to tell us what’s good for “the folks,” Fox News’ longtime fake conservative and mind-numbingly stupid populist Bill O’Reilly joined with many establishment GOPers (who themselves followed a groundswell of erstwhile anti-same sex marriage Democrats) in the Republican Party’s “rebranding effort,” which evidently is meant to alienate constitutionalists, classical liberals, and the socially conservative portion of the party base.
That is, the vast majority of the Party.
Which suggests to me that the GOP has determined that it is satisfied playing minority party in an ever-expanding federal government — a move that expands their power as well as the power of the Democrats, the idea being that the pendulum swings of national politics will eventually bring them back to supermajority status, and when it does, they’ll be able to control the purse strings and divvy up the spoils to their cronies — and to affect this posture, they’ve determined to rebrand themselves as enemies of the “fringe,” “extremist,” “homophobic” base, or, as President Obama called them, the “bitterclingers.”
Which is precisely what Bill O’Reilly does when he suggests that conservatives are losing the debate on same-sex marriage — their only defense for rejecting the federal courts trying to impose its will on the states being “Bible thumping”. As if there can be no other rationale, from a fidelity to the process of republicanism, to the fears that opening up the definition of marriage to things that have never been marriage will effectively (from the point of view of law) deconstruct marriage permanently, to the very conservative impulse not to allow five or six Justices — that is, citizens — to compel a mandated change to thousands of years of established marriage doctrine on the remaining 300+ million citizens.
Now, it’s long been clear that O’Reilly understands loofah and sex-scandal protocol far better than he does the Constitution, so it’s no major surprise that his understanding of DOMA, which merely by way of federal statute (and with a majority of both parties in support) underscored a previous SCOTUS ruling regarding the Full Faith and Credit Clause that disallows certain states to impose their will on other states by making those other states abide by policy decisions that the people of the state have voted against (policy decisions that are not unconstitutional per se), is at best shallow, and at worst completely confused.
Nor is it surprising that O’Reilly would flow with what he reads as the social tide — much in the same way contemporary GOP legislators are, hoping that SCOTUS will rule in a way that relieves them of the more politically troubling duty of repealing the constraining federal statute, in this case, DOMA.
The fact is, the federal court has no business adjudicating matters that are left to the voters of the states. That is, unless one believes that denying recognition of same sex marriage — or, perhaps better put, denying states the right to determine for themselves how to define marriage (which liberals celebrate when it happens in NY, eg., and which I as an opponent of same-sex marriage too celebrated as the proper way to change the law) — is a violation of the civil rights of homosexuals, which it clearly is not. It is merely denying them the label of marriage, with what comes to count as marriage determined separately by the states and, in the case of DOMA, the federal government.
Both the states and the federal government are free to allow their definitions “evolve” if they so choose (and if they can get the votes). And because this is not a civil rights issue — homosexuals can marry, they just can’t marry people of the same sex, a condition of law in some states that doesn’t prevent them from coupling or enjoying other legal rights, and is no less a check on marriage than age restrictions, which also differ among states — the same-sex marriage issue is an issue that needs to be determined by the people, the political process, and republicanism.
To claim you are a federalist means to recognize that it is up to the states and the people of those states to determine policy questions. Interference by the federal courts in policy questions that don’t redound at all to, in this case, the 14th Amendment, as its proponents suggest (at least, not under any conceivable originalist meaning) is a repudiation of federalism. Which in turn is a repudiation of republicanism and an embrace of federal supremacy — and that, taken wherever it can be gotten, be it through Executive fiat, legislative misconduct (ObamaCare, Dodd-Frank), or through the Supreme Court, is the real aim of the statists.
At which point, we no longer live in a constitutional republic. We just pretend to, because doing so gives cover to those times when we decide to bracket the process for political expedience. For progress!
How we get there matters.
Congress could repeal DOMA and redefine marriage for the purpose of federal law. But that’s a risky political fight — as blue state California made clear, public sentiment is simply not there for same-sex marriage in the way politicians of late like to pretend — so the DC pols are doing what they always do: posturing, positioning, and punting, and hoping that SCOTUS does the hard work for them.
Even if the very idea that it is SCOTUS’ work to do fundamentally weakens a republican system of representative government built around the idea of federalism.