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April 9, 2013

Gay marriage by fiat?

It is a sign of how far supporters of gay marriage have advanced that the term "opposite-sex marriage" - an infelicitous phrase that once would have been a confounding tautology - is now in common usage.

They have all the momentum. The polls are swinging their way. They had victories in state-level referenda for the first time in 2012. The entire Democratic Party is converting to their cause, and conservatives are increasingly split.

This would all seem reason to conclude that their campaign of persuasion is working, and to keep at it. Instead, supporters of gay marriage are asking the Supreme Court to declare the traditional definition of marriage - and by extension everyone who adheres to it - irrational and bigoted. They want to short-circuit democratic deliberation via court ruling as great cultural ukase.

The laws before the court are the Defense of Marriage Act, passed handily by a bipartisan majority of Congress and signed by President Bill Clinton in 1996, and Proposition 8, the measure passed by California voters in 2008 enshrining the traditional definition of marriage in the state's constitution.

The Defense of Marriage Act is a modest measure. For purposes of federal programs, it defines marriage as between a man and a woman, and it says that states don't necessarily have to honor same-sex marriages from other states. This creates a flexible environment whereby the federal government recognizes the traditional understanding of marriage that still applies in more than 40 states, while any state is welcome to adopt any other definition of the institution that it sees fit.

Opponents of the law have concocted an argument against it on federalist grounds. But it is bizarre to contend that a federal law defining marriage for federal purposes is an offense against the federalist structure of American government. The law has done nothing to arrest the progress of gay marriage at the state level, where it now prevails in nine states and the District of Columbia despite the Defense of Marriage Act.

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