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Another ‘Roe’ to Hoe: A States-Rights DOMA Ruling Should Have Implications Beyond Same-Sex Marriage

The opinions expressed by columnists are their own and do not necessarily represent the views of

We are now in the intermission of this year’s biggest judicial drama. The Supreme Court heard oral arguments on same-sex marriage (SSM) in late March—Act One—and will rule by the end of June. Before the actors in their black robes come back on stage, I’d like to drink some orange juice and chatter about three items.


First, instant reviews of Act One said the Supremes are on a states-rights kick: They don’t want Washington to impose a national uniformity in defining marriage by upholding the Defense of Marriage Act. Justice Anthony Kennedy, for example, spoke of “a real risk” of running into “conflict with what has always been the essence of state police power, which is to regulate marriage, divorce, custody.”

So be it. Too bad the high court didn’t have its nine heads screwed on straight four decades ago, when it nationalized abortion law to the extreme. Too bad Kennedy himself earned the nickname “flipper” two decades ago when he was the crucial fifth vote in the Court’s Planned Parenthood v. Casey upholding of Roe v. Wade. But the logic of a states-rights position on gay marriage also suggests an overturn of Roe v. Wade—if the justices have the courage to accept bad reviews from “The New York Times” and its acolytes.

That’s a big if. The justices’ predecessors in 1973 lacked both courage and respect for democracy. Despite clever tactics and overwhelming press sentiment, pro-abortion forces by the end of 1972 had won in only four states the virtually unrestricted abortion rights Roe v. Wadewould soon mandate for the nation. A Gallup Poll that year showed two-thirds of all Americans opposing elective abortion. In a referendum that year, 61 percent of Michigan voters said no to legalizing abortion on demand through the first five months. In North Dakota, 77 percent of voters turned down a similar referendum.


Today’s justices have a chance to do not only what’s right but what’s logical: If the Supreme Court affirms states rights on marriage, why not on abortion? Why not let today’s North Dakotans have their new law protecting an unborn child from abortion once his or her heartbeat is detectable? (That can be as early as the sixth week of pregnancy, when doctors use a transvaginal ultrasound.) Why not uphold the Arkansas legislature’s decision in March to establish protection for unborn children at 12 weeks, when an abdominal ultrasound can detect their heartbeats?

Second, some weary young evangelicals said about Act One, in the words of 32-year-old M.J. Daniels, “I. Do. Not. Care. … The debate over SSM is a divisive political issue that is tearing this country apart culturally and politically, while distracting from … issues like entitlement spending, border security, national defense, over-regulation, reckless monetary policy.”

That may be true, although if our biblical foundation crumbles the house erected on it will not stand. Still, editor Erick Erickson had a good rejoinder to Daniels’ central point: “You will be required to care. Gay rights advocates on the steady march toward and past gay marriage will make you care.” If the gay juggernaut continues to roll, churches and individuals will face discrimination and hate speech charges for not embracing SSM: “Evil peddles tolerance until it is dominant, then seeks to silence good. That’s why Christians fight on this issue. It is not to force themselves on others, but to protect themselves from others being forced on them.”


Third, the potential Court emphasis on restricting centralized power could lead to the empowerment of others, and that leads me to the winner of our contest (WORLD, Jan. 12, March 9) to rename “compassionate conservatism.” Kelly Cogan suggested “Effective Empowerment” and noted the existence of many ineffective programs: “We want programs to accomplish the goals they were intended to accomplish. … We want people to move from being entitled to empowered. … The name itself provides a way of measuring success. If people are not effectively empowered to move away from enslaving entitlements, those programs should cease to exist.”

If you want to read more about this and see a lot of good but not-winning suggestions, go to I post there on most days, as does Andrée Seu Peterson, and others, and our news coverage is distinctive, so please check us out.

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