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The crux of the marriage cases

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Last week’s arguments over marriage were the latest chapter in a very long but very important book about how freedom endures through the separation of powers.

The first day’s argument turns on whether the people of the state of California may decide what “marriage” is. They did, and they may yet change their mind, but it is absurd to say that a single district court judge with an ax to grind can defeat their judgment.

Indeed, much of the debate is jaw-dropping.

“I think there is something absurd and ridiculous in an appellate court defining an institution that pre-dates the United States by a couple of millennia,” Mark Steyn told me on air last week, perfectly capturing the multilayered absurdity of calling this debacle an exercise in “judicial review.”

“I’m curious,” asked Justice Cheshire Cat, aka Antonin Scalia, of former Solicitor General Ted Olson. “When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted? Sometime after Baker [v. Nelson], where we said it didn’t even raise a substantial federal question?”

Nice, that question, for it contains Hamilton, Madison, Marshall and Lincoln all at once. But it won’t be dispositive.

The actual decision will turn on the design of our constitutional republic — on the question of “Who gets to decide what?”

“I do think for purposes of the federalism issue, it really matters that all [the Defense of Marriage Act] does is take this term where it appears in federal law and define it for purposes of federal law,” another former solicitor general, Paul Clement, told the nine as he defended DOMA.

“It would obviously be a radically different case if Congress had, in 1996, decided to try to stop states from defining marriage in a particular way or dictate how they would decide it in that way,” he added.

Then Justice Anthony Kennedy cut to the issue. “Well,” the justice widely regarded as the key vote said about DOMA, “it applies to over, what, 1,100 federal laws, [and] when it has 1,100 laws, which in our society means that the federal government is intertwined with the citizens’ day-to-day life, you are … at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.”

My colleague at Chapman University Law School, John Eastman, wishes at this point that Clement has noted that if a state declares a car to be a home, the interest on the car payment does not become deductible under the federal mortgage interest deduction, and that the federal definition of either a mortgage deduction or marriage does not damage the standing of the states or the system of federalism.

And I wish Clement had pointed to the thousands of bridges across the land built in whole or part with federal dollars under a combination of the spending and interstate commerce powers, and noted that mere big numbers say nothing about the nature of the authority under which those numbers accumulated.

The frequency of the exercise of a legitimate power does not undermine that power, and a single illegitimate use does not excuse the abuse of the power.

If any of the 1,100 federal laws using “marriage” as a term are unconstitutional, they should be struck down, but all 1,100 ought not to be amended because a handful of states urge that result upon all the others.

Kennedy is a very sincere federalist and has been his entire career on the bench. It would be a tragedy if a misplaced concern for a truly important feature of our republic led him into a decision that deeply damaged that very essence of the Framers’ design.

Examiner Columnist Hugh Hewitt is a law professor at Chapman University Law School and a nationally syndicated radio talk show host who blogs daily at


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