Another Step Closer

Clarence Thomas and DOMA

The narrow DOMA ruling could led to a narrow Scotus that might include Clarence Thomas.

So now, after today's Defense of Marriage Act ruling, the Supreme Court will decide eventually whether a federal ban on states endorsing same-sex marriage is constitutional, or whether the government must recognize gay marriages from those states.

Scott Lemieux, who blogs on the Court and the law at The American Prospect, calls it a narrow ruling--narrower than most liberals would prefer, but maybe narrow enough for a majority of even this Supreme Court to live with: terms of the securing the goal of getting DOMA ruled unconstitutional by the Supreme Court, the relatively conservative character of the opinion is a feature rather than a bug. An argument that DOMA "does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage" may not be the primary problem most progressives have with DOMA, but the argument is much more likely to appeal to Justice Kennedy and perhaps even Justice Thomas than many other arguments would be.

What? Justice Thomas? Well...maybe. Recall his dissent from Lawrence v. Texas:

Justice Thomas, dissenting.

I join Justice Scalia’s dissenting opinion. I write separately to note that the law before the Court today “is … uncommonly silly.” Griswold v. Connecticut,381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’ ” Id., at 530. And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,”ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1.

Scalia's dissent wasn't just about issues of federalism, but about the larger kulturkampf in which he is such an implacable warrior (the Lawrence majority, he wrote, "effectively decrees the end of all morals legislation"). But Thomas limited his dissent strictly to federalism issues.

So look at what he wrote. As a Texas legislator, he'd vote against anti-sodomy laws. But as a high-court justice, he writes, it's Texas's business what it wants to do about such laws, not his. It would seem, therefore, that if he is going to be consistent about it, what Massachusetts and Hawaii and Iowa and so on do on this matter is their business. He had a golden opportunity to join Scalia and make a morals case, or make his own morals case, but he did not.

Of course, that was about private sexual behavior, not the institution of marriage. So Thomas may well see that differently. The idea that he'd stand on principle here and oppose a conservative policy preference seems rather remote to me, but the Lawrence dissent gives some hope.

Then we have the question of presidential politics. Gay marriage is one issue on which Romney has been consistent. Consistently reactionary and wrong, but consistent. One doubts he'll be particularly shy about pushing this one to the forefront. The relevant electoral question is whether there is now in this country a liberal pro-gay-marriage voting base as large as the conservative anti-marriage voting base. I think there may be, at least in the states that matter.