This Week in Epistemic Closure

I have argued in the past that those who charge the Republican party with epistemic closure forget (conveniently or not) that there is plenty of epistemic closure in their ranks as well. But this does not mean that epistemic closure amongst Republicans should not be criticized.

So, let me go on record as stating that cherry-picking a convenient media forum for debates between Republican presidential candidates is a bad idea. I recognize that Republicans would like to have friendly moderators ask friendly questions of their candidates, but eventually, those candidates are going to have to confront potentially unfriendly moderators. Best that they learn how to joust successfully with unfriendly moderators early in the campaign; honing that particular skill from the outset could be useful to the candidates and to Republicans in general as the campaign goes on.

And let me also go on record as stating that purging Republicans who happen to disagree with certain planks in the Republican party platform is a really terrible idea. (Link via Charles Lipson.) Winners can afford to purge their ranks. Losers cannot, and given that the Republican party has picked up the unfortunate habit of losing elections, it currently qualifies as a loser party. To win, it has to expand its tent, not shrink it. And incidentally, whether or not one is a same-sex marriage supporter (and I am), who in their right mind thinks that opposing same-sex marriage is a political winner these days?

A Much Needed History Lesson on DOMA

Many of the Democrats celebrating the Supreme Court's decision on DOMA would have you believe that they opposed the law from the outset. Zenon Evans performs a mitzvah by reminding all and sundry of what those Democrats desperately want all and sundry to forget:

. . . In response to the ruling, Bill Clinton tweeted that he is “grateful to all who fought tirelessly for this day.” He also released an official statement condemning the discriminatory nature of DOMA. What Clinton failed to mention was that he signed the act into law.

He wasn't alone in his silence. Other leading Democrats who supported it include Vice President Joe Biden, who voted for DOMA as a senator. Sen. Harry Reid (Nev.), who said, “The idea that allowing two loving, committed people to marry would have a negative impact on anyone else, or on our nation as a whole, has always struck me as absurd,” also forgot to note that he voted for DOMA. Sen. Chuck Schumer (N.Y.) released a statement praising the forward thinking of the Supreme Court. “The march towards equality... moved forward again today... The Supreme Court did the right thing here and helps us understand that the march to equality in America is unstoppable.” He made no mention of the fact that he, too, voted for the act and against "the march to equality." Sen. Bob Menendez (N.J.) patted himself on the back: “As a member of Congress who signed the amicus brief urging this decision [to repeal DOMA], I am thrilled that the Supreme Court took a strong stand for marriage equality." Menendez saw no need to clarify that this was only after he voted for DOMA in the first place. Sen. Tom Harkin (Iowa) voiced his support yesterday saying, "I am glad that the court recognized that all American families deserve the same legal protections," but made no mention of why his point of view flipped.

As in so many such cases, it is as though some people believe that their past positions cannot be accurately Googled by others.

The Supreme Court and Same-Sex Marriage

I support the policy outcomes in both of the same-sex marriage cases before the Supreme Court. I believe that the Defense of Marriage Act was bad law that treated people differently for no good reason whatsoever, and I am glad to have seen it overturned in the Court's decision in Windsor. As law professor Randy Barnett, who wrote an amicus brief in the Windsor case, points out,

. . . DOMA was unconstitutional because (a) Congress had no enumerated power to regulate or “defend” marriage by imposing its definition on the states, and (b) DOMA was not necessary and proper for carrying into execution any of its enumerated powers.  By operating in so sweeping and undiscriminating a manner, DOMA was exceeded its enumerated powers by enacting a law that by design interfered with the operation of the traditional state regulation of marriage.  But overlooked in debates about our argument, we also made this federalism claim in the context of equal protection:  (c) DOMA’s sweeping and indiscriminate application to over a thousand federal statutes could not pass any level of equal protection scrutiny, even the most deferential, because Congress failed to identify a federal interest why each of these disparate federal laws should not track state laws defining marriage, as had previously been the case.

I agree with this reasoning, and although--as Professor Barnett points out--Justice Kennedy's opinion adopted this reasoning "with a twist," the fact remains that "federalism wins out in theory as well as in practice" when it comes to the same-sex marriage cases, which is good both for federalism, and for the cause of equality in general.

A very good analysis of the DOMA case is offered by Timothy Sandefur, who--while agreeing with the policy outcome of the case--does state his belief that "the Court went out of its way to escape the long-standing limits on its jurisdiction in order to issue this precedent." And I also agree with the way that Ilya Shapiro has put things:

Today, the Court upheld the equal liberty and dignity of all individuals, regardless of sexual orientation with its ruling in United States v. Windsor. This represents a major victory for gay rights, of course, but more broadly vindicates a robust view of individual liberty as protected by the Constitution. It should be axiomatic that the federal government has to treat all people equally, that it has to accept the several states’ sovereign laws on marriage (and many other subjects), and today there were five votes at the Supreme Court for that proposition.

It is now clear that there was simply no valid reason to uphold DOMA Section 3, no reason to deny the equal protection of more than 1,000 federal laws. As Justice Kennedy wrote for the unified majority, “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”

This is exactly the result we were hoping for.

As for the Perry case, which leaves California's Proposition 8 invalidated due to a standing issue, I am glad that the decision functionally means that same-sex couples are able to get married in California, but of course, the fight in California is not over. I imagine that opponents of same-sex marriage will try to find another way to invalidate same-sex marriage in California, and I think that the only decisive way to beat back such an effort is for proponents of same-sex marriage to win a ballot fight on the issue at the polls. In fact, in general, it is preferable for same-sex marriage advocates that this issue is fought and won at the polls from now on, and kept out of the courts as much as possible. Only by winning at the polls will same-sex marriage advocates be able to show that their cause--which I support--is supported by the American people in general; any victory in the courts, no matter how decisive, will continue to cause opponents of same-sex marriage to claim that the right is being validated because of the actions of unelected judges.

Oh, and two quotes that I saw on Facebook are worth repeating here. Here is the first: 

Clinton signed DOMA into law. The Koch Brothers favored same-sex marriage before it became fashionable. But it's not like you'll update your priors based on that.

The second one makes the same point, and is from law professor Jonathan Adler: 

Nice to see so many friends of mine on the Left cheering a Supreme Court decision striking down a federal law enacted by a broad, bipartisan majority and signed into law by President Clinton. (Oh, and did I mention that this decision was supported enthusiastically by the Koch Brothers and urged by Koch-funded entities?)