08/02/2012 12:08 pm ET Updated Oct 02, 2012

The Democratic Platform and the Right to Marry

We are now at that very point in time when people pay attention to national party platforms. Personally, I cannot remember with any certainty anything about any previous platforms, and almost everyone I have asked about his or her recall draws a similar blank. But particularly with Congress about to adjourn and very little happening in Washington during August, there will be more focus on the platforms than they usually get, and, frankly, than they deserve.

Platforms at their best are predictors of what parties will do, and that is "at their best." Far more important is what the people elected to office as Members of either of the two major parties actually do. For some reason, people sometimes give more attention to platform promises than to actual actions.

That is very much the case with the response to the announcement that the Democratic Platform Drafting Committee, on which I served last weekend, proposed language supporting the right of people of the same-sex to marry, and specifically asserting our opposition to the Defense of Marriage Act (DOMA). I was surprised that this got the attention that it did, because in this instance, it is not even a promise or a prediction of what the Democrats will do. It is an after-the-fact statement of what we have already done.

President Obama has already stated his support for marriage equality for lesbian, gay, bisexual and transgender people, which is not only an important use of the bully pulpit to influence public opinion in general; it will be particularly helpful in the several referenda this fall on the subject, especially in states with large African-American populations, such as Maryland.

Equally important (as an exercise of presidential authority) is the president's refusal to defend DOMA in court because it is so blatantly unconstitutional, as well as his articulation that any government action discriminating against LGBT Americans must meet a higher standard than the simple "rational basis" test. This is an important addition to our fight for equality in general. This administration's view that it should be harder to justify such discrimination in court is a goal that has long been sought by me and others, and the president's support for it promises to be helpful not just on this particular issue, but on all other issues going forward.

Governor Romney, of course, opposes the president on every one of these points.

Party differences are equally stark with regard to congressional action. On Thursday, July 19, Representative Steve King of Iowa, the House Republican version of Justice Scalia in his vehement, virulent opposition to LGBT equality, offered an amendment to reaffirm DOMA. Not surprisingly in this Republican House, it passed, but the vote tally from each party is instructive: the Republicans voted 230 to 5 in favor of DOMA; the Democrats voted 17 to 161 against it. (1 of the 17, Representative Tim Holden of Pennsylvania, has already been defeated in a primary by a Democrat who supports us.)

The draft Democratic Platform, if this plank is accepted in its current form, will affirm support for the right of same-sex couples to marry and affirm our opposition to DOMA. It will not be a promise but a summary of actions by the Democratic President and more than 90 percent of House Democrats. I am therefore surprised that some people were surprised that the party's platform would reflect what the party's elected officials already have done.

There is another aspect of the debate over the platform that should be clarified. Some media reports have raised the question as to whether the platform will call for a uniform federal policy that gives same-sex couples the right to marry everywhere in the United States, or would instead be an affirmation of our belief in that right, with the specific action being proposed a repeal of DOMA. The answer is that it is the latter, not as a matter of party preference, but because the former alternative does not exist.

There is no federal law recognizing marriages and there never has been. It is possible for the federal government to establish the right of same-sex couples to marry everywhere, but neither the president nor the Congress would have any role in that. The only way under our constitutional system to achieve a uniform federal right to marry is if the Supreme Court were to declare that a denial by a state of the right of same-sex couples to marry was a constitutional violation. That is something I would personally very much like to see, but no one who studies this thinks that there is a very good chance of that happening in the near future. That is why the best legal scholars and activists in our fight, including Mary Bonauto, who is the closest we have to Thurgood Marshall in combing legal expertise with a strong strategic sense -- understand that the judicial strategy should be an attack on the federal government's refusal to recognize same-sex marriages that are allowed by the states, as a denial of equal protection, and also, thanks to the courageous action of Massachusetts Attorney General Martha Coakley, a violation of the state's right to decide how it will define marriage.

In fact, given that emphasis in the courts on our defense of the state's right to decide what it wants, a uniform federal statute would put us in a somewhat contradictory position -- although that is the lesser object given the fact that there simply has never been a federal definition of marriage, that marriage has always been left to the states to decide subject to respect for constitutional rights as decided by the Supreme Court, and that a federal action would be unlikely in fact to survive the current Supreme Court, given the decision in the health care case.

The history of the abolition of the prohibition against interracial marriage in many states illustrates the point. Bans on interracial marriage in America on a national basis were not accomplished by executive or congressional action. They were ruled unconstitutional by the U.S. Supreme Court in the case of Loving vs. Virginia in 1967. Note, by the way, that that decision did not say that marriages in one state had to be recognized in other states. In fact, for decades, interracial marriages in some states were not held to be valid in those states that banned interracial marriage, and any effort to use the full faith and credit clause to require Virginia to recognize New York marriages got no traction. If interracial marriages in one state had to be recognized in states that banned them because of the interracial marriage laws, then there would have been no need to bring a lawsuit based on racial discrimination.

Note that the president and Congress did work together to pass important legislation banning discrimination based on race in the years prior to the 1967 Supreme Court decision on marriage. The Civil Rights Act of 1964 banned discrimination in employment and public accommodations, while a year later very strict voting rights legislation was passed. In neither case did anyone try to include marriage as a federal right, because of the strong constitutional framework that I have mentioned, which holds this to be entirely up to the states.

In announcing his support for same-sex marriage as a matter of policy preference, and in vigorously opposing DOMA, President Obama has done the maximum that can be done, reaffirmed by the votes of Democrats in the House. And it is also true that previously, the House Democratic Leadership made this position clear when Representatives Pelosi and Hoyer, as part of the 5-Member committee that decides these matters, voted against Speaker Boehner's decision to spend House money for the legal defense of DOMA.

The position taken by the platform committee is very much the one requested by those engaged in the effort to secure our right to same-sex marriages, as reflected in their testimony, and as reflected in the strategy of Mary Bonauto, GLAD and Evan Wolfson, long a leader in this fight, who wrote a very articulate letter to the New York Times underlining the point.

If this platform plank is in the final version -- as I expect it will be -- Democrats will be continuing our opposition to the Republican Party's effort to negate our right to marry.