Legend has it that Ernest Hemingway was having dinner with friends and offered a bet that he could write a story of six words that would make people cry. His friends reportedly put their money on the table and Hemingway wrote down his story, which was:
"For sale, baby shoes, never worn."
Literary historians debate whether the Hemingway story is true, but in its spirit of simplicity, let me propose that the law of the land should be, simply:
"Not for sale, equal rights for all."
I would argue that "equal rights for all" is the law of the land today, despite the fact that the law as interpreted by the current Supreme Court majority does not yet agree.
The Defense of Marriage Act is probably, fortunately, to use a non-legal formulation, a dead duck. Good. The DOMA duck never should have existed in the first place.
Unfortunately, the fifth vote for the demise of DOMA might well be cast for the wrong reason -- i.e., the most powerful man in America, Associate Supreme Court Justice Anthony Kennedy, might well suggest that DOMA violates (ugh!) states' rights.
Right result, wrong reason. If State X were to legislate that a marriage between a straight Hispanic and a straight white would be illegal, or if State Y were to legislate that whites are permitted to vote but blacks are not, or if State Z were to legislate that slavery will be legalized, should States X, Y or Z have a constitutional right under states' rights doctrine to do these things? Of course not.
Why should gay American citizens be granted a secondary constitutional status that is both separate and unequal compared to straight American citizens? Of course they should not be. But they may be, because:
The most likely outcome of the California gay marriage case would effectively allow gay marriage to exist in California in a decision that would not impact other states. Would justices who vote for this one-state outcome do the same if State A outlawed marriages between straight Christians and Jews, or State B outlawed marriage between straight Hispanics and whites? Of course not. Should the Supreme Court hold that marriages between any straights are constitutionally protected but marriages between gays are not? Of course not. But it may.
And shouldn't we agree that the majority of Americans who are female have constitutionally equal rights to the minority of Americans who are male?
Shouldn't we agree that the Constitution as written guarantees equal rights for females, and if not, shouldn't we ratify the Equal Rights Amendment?
Let's compare pay discrimination against women with voting rights for Alabamans. In the most important pay discrimination case, five Supreme Court men decided that the women did not have standing to challenge pay discrimination against them. Is the legal rationale that the Supreme Court men thought the women faced no discrimination on pay, or that the women faced different kinds of discrimination, and therefore lack standing to challenge discrimination? This is constitutionally absurd.
How can Supreme Court justices who denied the women standing to challenge pay discrimination uphold standing for Alabamans attacking Section 5 of the Voting Rights Act, when the Alabama county has such a bad voting rights record, according to most election analysts, that it would be covered by the Voting Rights Act no matter what formula of states would be covered? Where's the harm to the Alabama county, unless justices believe no Americans in any state should have voting rights protection?
In my view, the women should have been granted standing to combat pay discrimination, Alabama should not be granted standing to defend voting rights abuses, and Section 5 should be upheld.
Why don't we make this easy and agree that equal rights belong to all Americans, and then legislate and litigate accordingly? Fair enough?