The XX Factor

Process-Oriented Bad Faith

It’s 2010, 14 years into the Defense of Marriage Act, and now the lawsuits that could result in DOMA being ruled unconstitutional are really starting to get underway .  I’m not a lawyer, but the argument against DOMA seems airtight, and hopefully by the time one of these cases makes it to the Supreme Court, the justices will see it that way, too.  But what I’m most interested in is the quote in the New York Times from the notorious anti-gay bigot Maggie Gallagher.

Maggie Gallagher, the chairwoman of the National Organization for Marriage , a group that opposes same-sex marriage, said court challenges to the Defense of Marriage Act showed that gay rights advocates “continue to push a primarily court-based strategy of, in our view, inventing rights that neither the founders nor the majority of Americans can recognize in our Constitution.”

The two process arguments that conservatives rely on so they don’t have to come out and say they support legal discrimination are “judicial activism” and “states’ rights.”  The idea is that we all pretend they have some principled stand on the process, and the side effect of legal discrimination is just an unfortunate circumstance that’s out of their control, and not their ultimate goal at all.  But this quote exposes how empty that rhetoric is.  After all, if you believe in states’ rights, DOMA is an outrage, since it usurps the right of states to legalize gay marriage.

Basically, Gallagher is arguing that the Founders didn’t intend for the Supreme Court to look at the constitutionality of federal legislation like DOMA. If they didn’t intend for this to happen, they probably shouldn’t have granted them that power .  “Judicial activism” is a complaint that conservatives concocted to claim that the courts don’t have a right to rule on state legislation, like legal segregation or bans on interracial marriage. It’s a silly argument by itself, but even funnier when someone like Gallagher tries to expand it to suggeest that the Founders wanted the Supreme Court to be unable to overturn federal legislation.

Of course, the irony here is that Gallagher probably would get bunched up if you asked if she supports the kind of rulings that do fall under the “states’ rights” overreach argument.  Does she think school segregation should be legalized again, and interracial marriage banned?  Or does her mind-reading abilities regarding the Founders make it “judicial activism” only if the Court examines laws that involve the rights of gay people?

Photograph of Maggie Gallagher courtesy of Wikimedia Commons.