He goes on to say: "Whatever the activists on both sides say, nothing in the Constitution requires the Supreme Court to short-circuit the country's search for a new consensus, either by imposing gay marriage nationwide or by slamming the door on it with an aggressively dismissive ruling. Sometimes the right answer for the courts is to step aside and let politics do its job."
Slowly new voices are emerging in defense of our constitutional system of government.
In the Daily Caller, my colleague Brian Brown (president of the National Organization for Marriage) points to the same underhanded collusion to which Richard Epstein alludes.
"But if there is any excuse for Judge Tauro's ruling, it lies in this fact: No one in that courtroom in front of him tried to defend the law. President Obama's Justice Department (with Elena Kagan's participation as solicitor general) pretended to defend DOMA, while actually sabotaging the law and ensuring its overthrow by the courts."
How did President Obama's Justice Department, with Elena Kagan as solicitor general, sabotage DOMA? As Brian Brown says, "Let me count the ways."
First there is the strange hole in Judge Tauro's opinion. In the 19th century, the federal government intervened repeatedly to ban polygamy, and the Supreme Court upheld the federal government's right to do so. The reason Judge Tauro doesn't deal with these precedents is that President Obama's brief never mentions them.
But, as Brian Brown points out, "It gets worse than that."
Congress, when it passed DOMA, laid out in very clear terms that "responsible procreation" is a key reason for DOMA's existence. As Judge Tauro's ruling notes: "The House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources."
But in its briefs, allegedly defending DOMA, Obama's Justice Department explicitly repudiated "responsible procreation" as a reason for DOMA. "How can Justice's lawyers strip a law of its clearly stated purpose?" Brown asks. "Well, the DOJ brief claims 'expert consensus' now exists that children don't need moms and dads."
There you have it. As Brown writes, "Rule by out-of-touch, anonymous experts, backed by activist judges. Brought to you by President Obama."
Politics makes strange bedfellows. But principle, done right, can make even stranger ones.