March 29, 2007

Romney's Law of Thermopolitics

Posted by: Chris

Even when Mitt Romney isn't contradicting himself, it seems he's contradicting himself. That's what can happen when a politician who wants to seduce the right in the GOP presidential primaries goes in for an extreme makeover on social issues. As pretty as the former Massachusetts governor has made himself to  conservatives, he could be expected to have his political shirt untucked and a few hairs out of place.

It's bad enough the press keeps flashing back to those ugly days before the radical change in his look. That 1994 promise to be more effective on gay rights in the Senate than Ted Kennedy must just make him cringe. Think Justin Timberlake forced to relive "Bye! Bye! Bye!" from his 'N*Sync salad days.

But it's not just that Romney has just shed his pro-gay, pro-choice past like last season's Prada. The nettlesome fashionistas in the media keep pointing out when eve his brand new belt and shoes don't match. Like this excellent piece in the Atlantic by gay journalist Jonathan Rauch, who I recently had the pleasure of meeting. Rauch points out that although Romney has reversed himself on abortion and gay rights, he didn't wind up consistent, even in his consistent opposition to both "social ills":

Romney believes abortion is wrong, but he thinks the decision on whether to allow it should be left to the states. In February, National Journal asked him if he favored a constitutional amendment banning abortion. No, he replied:

"What I’ve indicated is that I am pro-life and that my hope is that the Supreme Court will give to the states … their own ability to make their own decisions with regard to their own abortion law. … My view is not to impose a single federal rule on the entire nation, a one-size fits all approach, but instead allow states to make their own decisions in this regard."

Romney also believes gay marriage is wrong, but he thinks the decision on whether to allow it should not be left to the states. Last year, he poured scorn on Senator John McCain, who (like Romney) opposes gay marriage, but who (unlike Romney) opposes a U.S. constitutional amendment banning it. “Look,” Romney said, “if somebody says they’re in favor of gay marriage, I respect that view. If someone says — like I do — that I oppose same-sex marriage, I respect that view. But those who try and pretend to have it both ways, I find it to be disingenuous.”

Taking the two quotations side by side, one could be excused for supposing Romney was trying to have it both ways.

Rauch cuts Romney some slack for his clashing views, since conservatives generally can't seem to reconcile their fondness for federalism — letting the states decide important social questions — with their impatience with those pesky progressive states that decide questions the wrong way. The pattern that emerges is one of politics more than principle: Where the public nationwide is against them, like on keeping abortion legal, conservatives go for federalism so they can get their way at least somewhere. Where the poll numbers swing with them, like on gay marriage, they go for broke and a single federal solution. That's so expedient it's no wonder a swinger like Romney fell for it.

But Rauch digs even deeper, arguing that Roe vs. Wade short-circuited the public debate by taking the abortion question out of the state legislatures.  He believes that since the Supreme Court forced a one-solution-fits-all result, abortion became "an indigestible mass in the pit of the country’s political stomach."

For gay marriage, on the other hand, Rauch sees the debate playing out like "the abortion tape run backward." Things started out on the extremes, with the Massachusetts Supreme Judicial Court insisting on nothing short of marriage and President Bush responding with a federal marriage amendment. But since then, says Rauch, the action has moved back to the states:

With the federal government standing aside, the states got busy. All but a handful passed bans on gay marriage. Several adopted civil unions instead of gay marriage. One, Massachusetts, is tussling over efforts to revoke gay marriage.

The result is a diversity of practice that mirrors the diversity of opinion. And gay marriage, not incidentally, is moving out of the realm of protest politics and into the realm of normal politics; in the 2006 elections, the issue was distinctly less inflammatory than two years earlier. It is also moving out of the courts. According to Carrie Evans, the state legislative director of the Human Rights Campaign (a gay-rights organization), most gay-marriage litigation has already passed through the judicial pipeline; only four states have cases under way, and few other plausible venues remain. “It’s all going to shift to the state legislatures,” she says. “The state and national groups will have to go there.”

Barring the unexpected, then, same-sex marriage began in the courts and will wind up in the state legislatures and on state ballots.

Rauch does a fine job of dressing up a pig, but I can't share completely his optimism that conservatives (or liberals) will sit back and allow a full and fair debate on gay marriage at the state level. For one thing, there's the federal law called the Defense of Marriage Act, which allows all 49 states to ignore marriage licenses issued to gay couples from Massachusetts. It's the equivalent of a law in an anti-abortion state that makes it criminal to travel to another to terminate a pregnancy. If we're going to have a patchwork of laws, then the states leaning one way have to live with and respect those states that lean the other.

And in many of the states that lean strongly against gay marriage, the legislatures haven't just banned it, they've written their disapproval into their state constitutions.   That overreaction can only be redressed with an equal an opposite overreaction — call it Romney's Law of Thermopolitics — likely in the form of federal court intervention. That could happen in either of two forms: some federal court somewhere will strike down a state amendment, like the pre-Bush Supreme Court did in Romer vs. Evans, albeit in response to another type of anti-gay amendment enacted by Colorado.

Or, even more likely, a federal court will rid us of DOMA, which would mean those states with anti-marriage bans written into their constitutions would be forced to at least recognize marriage licenses issued to gay couples in the pro-gay state next door. The U.S. Constitution does require, after all, that each state give "full faith and credit" to the legal documents issued by the others. If a federal court has the temerity to strike down DOMA for violating that fundamental principle of comity, then federal marriage amendment here we come.

Or the liberal side may take action at the federal level, since all the leading Democrats running for president back extending federal recognition to same-sex couples. The campaign promises have stayed somewhat vague up till now, but when Hillary Rodham Clinton, Barack Obama and the others say they favor "civil unions" and "equal rights" for gay couples, that probably means repealing the other half of DOMA, which blocks federal recognition for gays married by states.

That's a lot of different avenues that lead to re-federalizing the gay marriage debate, and I'm skeptical the two warring absolutes will stick to fighting it out in the state legislative sandbox. And that's too bad for all concerned. I agree strongly with Rauch that "the last few years have provided a potent demonstration of the power of moral pluralism to act as a political shock absorber." As much as I believe that banning gays from marrying offends our Constitution's promise of equal protection, the United States is not Canada (or South Africa) and is unlikely to follow such a court-led route to marriage equality.

But with DOMA and these  state amendment stacking the deck so heavily against a fair debate on marriage in the state legislatures, that means we're forced to put our faith in the likes of Romney, Clinton et al to keep both sides playing fairly. Color me skeptical they're up to the job, whatever they believe this week.