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Torture Memos Author and the Freedom to Marry

Ian S. Thompson,
Senior Legislative Advocate,
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August 13, 2010

You might think that a man who achieved infamy as one of the authors of Justice Department legal memos authorizing torture, thereby undermining the rule of law, would be happy to retreat to a life of quiet obscurity — hey, at least it isn’t a prison cell! But such is evidently not the case with University of California, Berkeley, law professor John Yoo.

In a column in Thursday’s Wall Street Journal, Yoo offers readers his take on the freedom to marry for gay and lesbian couples and the role of the courts in securing and protecting this right. It may not come as a huge surprise that a man who demonstrated a shocking disregard for the Constitution and the rule of law while working as a Justice Department lawyer in the Bush administration does not see much of a role for courts in this area either. Yoo writes:

The Constitution does not set up the federal courts as a roving commission of do-gooders to correct all of the nation’s problems. The courts, populated by a small number of older lawyers deliberately isolated from the people and inexpert in any field, are likely to cause more social diseases than they cure.

While the courts may not be roving commissions of do-gooders, they are nonetheless the proper venues for individuals to seek help when their constitutional rights have been violated. Time and time again throughout our history, the Supreme Court has found the freedom to marry to be a fundamental right. In striking down Proposition 8 in California last week, Judge Vaughn R. Walker ruled that it was an unconstitutional violation of the equal protection and due process rights of gay and lesbian couples. Ensuring fundamental rights is exactly what the Constitution empowers judges to do.

Interestingly, Yoo goes on to say that he supports the freedom to marry for gay and lesbian couples, but does not think this should be accomplished through “judicial fiat,” but rather through the principles of federalism. Yoo again writes:

Under our decentralized system of government, states offer different combinations of taxes, spending and rights. Citizens can vote with their feet and live in the states that satisfy their preferences…I trust in the ultimate good will and generosity of the American people, if given the chance to express themselves through the Constitution’s traditional system for social change.

Of course fundamental constitutional rights should not be put up for a popular vote, and gay and lesbian Americans should not be forced to move from state to state simply to enjoy their rights to equality and liberty under our Constitution. However, Yoo misses an even larger point here – the federal Defense of Marriage of Act (DOMA). DOMA forces the federal government to refuse to respect the decisions of those states, and the District of Columbia, which have extended the freedom to marry to their gay and lesbian residents. If he’s such an adamant champion of federalism, Yoo should be helping to lead the charge to repeal DOMA. But, last time I checked, this was far from the case.

Yoo presents us with a false choice that ignores the intended role of our courts as well as the current federal law that relegates gay and lesbian couples, even those who were legally married in their state, to second-class citizenship through the disregard of their relationships at the federal level under DOMA.

While it is critically important that Congress move forward with a repeal of DOMA, our courts must also continue to play their historical role in upholding and protecting our fundamental constitutional rights. If there is only one thing that should be crystal clear by this point, it is to be wary of legal advice offered by the man who sent America down the long, dark road of shunning our most cherished rights and the rule of law.

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