Defense of Marriage Act Struck Down: DOMA Rejected by New York Federal Appeals Court


On Thursday, a federal appeals court in New York became the second to strike down the1996 Defense of Marriage Act (DOMA), which at the federal level defines marriage as between one man and one woman. (The first was a federal appeals court in Massachusetts.) While the issue is being celebrated by some and vilified by others, social issues have been largely absent from the political campaign. The reason for this is a shift in Republican focus, from social issues to the economy, presumably to attract bring in libertarians and younger generations.

An unacknowledged fallout from the Bush presidency was the deligitimization of neoconservatism. Aided by the refocusing on the economy because of the financial collapse, politics has become a dialogue of the economy with social issues taking a back seat. Granted Mitt Romney is a vestige of Bush era big-government, military interventionist conservatism, but even he is masking his campaign in laissez-faire economics. As the libertarians' enthusiasm makes an impression on the Republican Party, the shift is moving to social, not just economic freedom.

It was only a matter of time when “small government” began to include social as well as economic ideals. Of course, many Republicans still stand against gay marriage and utilize the state laws to keep marriage between one man and one woman. But a national ban on gay marriage and same sex unions severely undercuts a small government narrative, and will erode with time. Most Americans support gay marriage anyhow so to make hay of such an issue only energizes a base that you can already count on. Of course New York is a liberal state, as is Massachusetts the first state to strike down DOMA. Conservatives will argue that these liberal bastions are an anomaly. Nonetheless, these are federal courts.

Marriage policy is key to watch if interested in the transformation and adaptation of the Republican party. It remains an anomaly like drug policy when small government freedoms are concerned because regulation is encouraged. The challenge from the libertarians are siphoning off, not just votes, but much needed enthusiasm. It would be wise for the GOP to encourage no federal regulation of marriage, but instead encourage state regulation. That way they can still articulate their “small government” narrative but have the luxury of playing the policing morals game only in places where it is a winning strategy.