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I am no expert on the fine art of social dynamics. Nonetheless, it seems pretty clear that in times of great national stress, such as the carnage in Orlando, our impulses should be to unite a nation reeling from its wounds. But evidently that simple message of compassion and good sense never reached Anderson Cooper of CNN, who has found himself embroiled in a controversy over his interview with Florida Attorney General Pam Bondi that turned into a stern lecture about her role in the litigation of same sex marriage in Florida that ended two years ago.
Cooper was sufficiently uneasy about his dismal performance on the day that he offered a tortuous explanation the next day of how he came to blindside her, in which did everything but explain away his bad taste in conducting the interview. A simple “I’m sorry” would have served him and his audience.
The origin of this unseemly dispute had nothing to do with the way in which Bondi had handled official duties arising out of the Orlando incident. Rather, Cooper took the occasion to lecture her for being antigay because of the litigation posture that she took in defending the Florida law, which by referendum had approved the traditional definition of marriage as a union between one man and one woman.
As an Attorney General, Bondi’s duty is to defend those laws so long as there is any plausible ground to do so, and to do so with those arguments that she thinks best advance her position. In this case, the Florida law did not break any new ground, but just affirmed what had been basic social understandings in the United States about gay marriage, which was not even a blip on the constitutional horizon as recently as 25 years ago.
To be sure, when Proposition 8 came up in California, Kamela Harris, that state’s Attorney General, refused to defend the law, which I think was a serious dereliction of her duty, even though her action gained widespread applause. The Attorney General occupies an office with official duties, and she does not get to pick and choose what laws to defend any more than a county clerk has the right to refuse to allow her office to issue marriage licenses to gay couples once the legality of same-sex marriage has been accepted. Individuals can beg off the assignment, but only insofar as others within the office are able take up the charge.
Bondi was therefore correct to do her job, and the interview with Cooper turned on his view that her briefs took the position that gay marriage caused some social harm. The point of course is exactly what these briefs have to say. Indeed, it is exactly what has to be said in any brief that deals with the so-called moral head of the police power.
The reason we ban polygamy under current law is that it undermines the social fabric of marriage — or so we are told. Now I happen to believe that the objection to both practices is misplaced, and find it odd in the extreme that none of the defenders of same-sex marriage are willing to announce their support for polygamy, lest it compromise their political position. The overall arguments are much the same. In both cases, the supposed harm is to the feelings of those who disagree with these beliefs, often on religious grounds. Nothing is more dangerous than having people in a free society block the behavior of others solely on the ground that they take offense at what they say or do.
Ironically, it turns out that the case for the constitutional protection of polygamy is far stronger than that for same sex marriage. The Equal Protection clause is singularly ill-suited for dealing with this issue. Its initial purpose, as reflected in the use of the word “protection,” was to secure equal enforcement of the criminal law for all persons — which was a huge deal, especially in the South during and after the reconstruction period.
The early understandings make it painfully clear that the Equal Protection Clause was not a classical liberal doctrine insofar as the moral head of police power was surely meant to block at least some consensual activities of a sexual nature. But once the inquiry shifts to the free exercise of religion under the First Amendment, there is now a specific textual warrant for the position, which was obliterated by the Supreme Court’s 1878 decision in Reynolds v. United States, which contains some of the most fearsome and ugly language found in Supreme Court opinions. It states as a simple matter of fact that “polygamy has always been odious among the northern and western nations of Europe.” Reynolds is still good law today.
As a lawyer, Bondi knew her legal obligations had nothing to do with her personal opinions. Indeed, I will go further and say that it is a mistake for Cooper or anyone else to think their own views of morality are necessarily encapsulated in our constitutional text. I am a firm supporter of same sex marriage, but think that there is no textual warrant for the Supreme Court’s decision in Obergefell v. Hodges, and regard it as dangerous that any reporter should think that it’s his job to take after people whose views are different from his own on matters of high constitutional import.
It is also frivolous for Mr. Cooper to write as if constitutionalizing same sex marriage is needed to cure all our social ills. He did mention that that the approval of gay marriage made it possible for gay and lesbian people to inquire after their loved ones, which they could not do if they were not regarded as married. But the sad point here is that there are many people, gay and straight, who cannot make those inquiries because the privacy laws “protect” them from this supposed intrusion. But the appropriate response here is to expand the list of people who can make inquiries so that marriage of any sort is not regarded as a precondition for these inquiries.
There is no reason to belabor these legal issues any further. There are other ways and other times on which to have that debate as a debate, not as a showboating inquisition. And if Cooper wants to do that, he should pick another time and another place to raise this point. Bondi is running for reelection. He would have been well-advised not to inject an explosive political dispute into a truly horrible national tragedy. He certainly caused Bondi serious embarrassment and probably some political harm. But he also managed to diminish his stature in his chosen profession. A simple, “I am sorry that I stepped over the line,” would have been a far more graceful response.