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Susan Estrich: From Immigration to Gay Marriage, Political Stops and Starts

This was a week of major political moves in Washington.

The most obviously political was the Senate’s passage of “landmark” immigration reform. It is landmark, no question of that. But no one gives it any chance of becoming law, which raises the question of why its passage really matters, except politically.

The answer is that when it comes to immigration reform, it’s all politics.

The Senate is passing major immigration reform because the Republicans got hammered among Hispanic voters in the last election, and the Republicans can’t afford to turn their backs on demographics. The House won’t pass it, because not all Republicans see things that way, which is why the Republican Party is in trouble. Or civil war.

So what happens is that Republicans in the Senate who (think they) are trying to save the party end up calling even greater attention to the fact that theirs is a party that needs saving. Who said politics was easy?

The best politics this week were around the corner, at the Supreme Court. If you take the court’s two gay marriage cases and put them together, you have a simple rule: Leave it to the states. If a state wants to recognize same-sex marriages, the federal government will respect it. If a state doesn’t want to defend its law, we’re not going to save it.

Now, speaking as a law professor, I can tell you that neither of these cases purported to decide how the gay marriage issue should be resolved in this country, much less what the result should be. The ruling in the Defense of Marriage Act case didn’t require the kind of elevated scrutiny applied in cases of race or gender. The states having decided, federalism as well as equality concerns allowed the court to strike down DOMA without reaching a decision on the constitutionality of conflicting state laws. And the 5-4 split on the standing issue in California’s Proposition 8 case was, ideologically speaking, a mish-mosh.

But if you put the two together, it is in many ways the perfect Washington compromise on an issue as to which there really is, on the merits, not much of a middle: You tend to be for gay marriage or against it. The old days when people would play word games by saying, well, they were for civil union but not civil marriage? Those folks are all for gay marriage these days. For or against.

But the Supreme Court created the perfect middle ground. You want gay marriage? Vote for it. You don’t want it? Vote against it, or pass a constitutional amendment that you’re willing to defend. No more acts of Congress. Congress is out of the gay marriage business.

As for the states, there will be challenges. And some appeals court somewhere may hold, one of these days, that a ban on same-sex marriage is itself unconstitutional. Then the court may face the issue. But between now and then, the action is out of the courts and out of Washington; states will reach different conclusions; I’ll have an answer when cynics ask why politics matter, because they will; and the Supreme Court justices can have much calmer vacations.

In the short run, of course, many proponents of gay marriage are disappointed that the court did not reach the merits of the California case, which would not have been the same as the merits in a state that never granted and then revoked the right to marry in any event.

But civil rights litigation often proceeds best in steps, which is what the late Thurgood Marshall so brilliantly understood. And this was a big one. If by the time the court sees the issue again there are 40 states that recognize gay marriage, it will be that much easier to take the final step.

Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.

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