George Will has an excellent column on why the Defense of Marriage Act violates the Constitution, but not for the reasons you think. Until 1996, it was a given: Marriage was not a subject of federal law or regulation. There is nothing in the Constitution about marriage, individual states had exclusive jurisdiction to define and regulate marriage as they saw fit and all was right with the world of federalism, or at least it was on this issue.

But in 1996 and under a liberal Democratic president with support from liberal Democrats in the House and Senate, DOMA was enacted and presumed to define marriage for purposes of federal law as between one man and one woman. It was a perfect expression of the left’s view of federalism: When the Constitution gets in your way or doesn’t give you the authority to do something, make up stuff that gets you where you want to go since the ends always justify the means no matter whose rights get shredded in the process.

Social conservatives were elated, but they gave no thought to the consequences to our federal system. Then again, they rarely give thought to any political or economic policy outside their own point of view–in that they closely resemble liberals and progressives. Conservatives largely supported DOMA because they had yet to be mugged by the reality of how an abuse of federalism would come back to seriously bite them in the ass on issues such as Obamacare. What few libertarians there were in those days were uneasy because they saw DOMA as an unwarranted reach by the federal government — let the states do it, they said. 

Now, however, the libertarian point of view is in the ascendancy on the right (cf. Paul, Rand), social conservatives have lost much of their political clout, gay marriage has attained a level of acceptance hitherto unimaginable a few years ago and several states have legalized gay marriage outright. So what’s the Supreme Court to do since it is slated to hear arguments on the constitutionality of DOMA along with California’s Proposition 8, a 2008 voter-approved measure that defined marriage as between a man and a woman, later this month?

The Obama administration refuses to defend DOMA in court. Former DOMA supporters on the left have undergone a politically correct and oh so convenient foxhole conversion (cf. Obama, Barack and Clinton, Hillary and Bill) in favor of gay marriage. They have been joined by several on the right including DOMA’s original sponsor, former Rep. Bob Barr, R-GA, and former Vice President Dick Cheney, the left’s ultimate incarnation of all things evil and Darth Vaderish who was out there in favor of gay marriage when Moses still wore short pants.

Add to this that many, if not most, Americans, especially younger ones, are simply indifferent on the issue. But does this mean SCOTUS will find a right to gay marriage per se in the Constitution? I certainly hope not since there is nothing in the U.S. Constitution mandating such an outcome.

DOMA can and should be struck down as unconstitutional because it is an intrusion of the federal government into an area reserved exclusively to the states — nothing more, and nothing less. That being said, the states are free to legalize gay marriage, ban gay marriage (38 states have done so, including California where Proposition 8 is valid and constitutional), find some middle ground on gay marriage or do nothing at all on gay marriage. If supporters or opponents of gay marriage find this unacceptable that’s probably good for federalism and bad for them — they can always move to a state more attuned to their point of view. Welcome to what it means to live in a constitutional republic.

 Scott St. Clair is a journalist, rhetorical pugilist, agent provocateur, aider and abbetor of James O’Keefe and a former competitive Highland piper. He says what he thinks, means what he says and doesn’t suffer fools. He’s also a member of the Victoria Taft Blogforce. His opinions are entirely his own, and you shouldn’t expect them to mirror yours.