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Friday, November 7, 2008

Gay Marriage and Federalism

With gay marriage bans passing in three states (Prop 8 passing in California, Prop 102 in Arizona and Prop 2 in Florida), the issue of gay marriage seems to have taken a new turn. Surprisingly, California voters defied the California Supreme Court and overruled their ruling from earlier this year, even with the Governor supporting the decision. The question this and the other voter-backed propositions bring up is how are we to reconcile a very motivated gay movement with the will of the voters of 41 states? The answer has always been there: federalism.

The US Constitution gives the federal government certain powers and delegates all other powers to the states through the Ninth and Tenth Amendments. For the most part. social issues have been a state matter. Abortion and gay marriage have put major pressure on federalism and its advocates. Roe v Wade forced every state to allow abortion through a very expansive reading of the Equal Protection Clause of the Fourteenth Amendment. This reading has led to other expansive rulings like Kelo (making eminent domain no longer just a public need tool). California's own expansive reading of the Equal Protection Clause was the basis of the California Supreme Court's ruling making gay marriage legal. This precedent may be the basis of any gay marriage case taken to the Supreme Court. Other than the destruction of federalism, a SCOTUS ruling that forces gay marriage nationwide would ignite a new front in the culture war that already has some very nasty battles.

It may not make any gay marriage advocates happy, but federalism is the best way to get what they want. Focusing on more liberal/libertarian states would create havens for gay marriage, just as some states have more conservative/libertarian gun laws than other states. This is the beauty of federalism: a nation united, but as diverse as the Amazon jungle. Some states may have full and equal straight/gay marriage, some states may have separate-but-equal marriage/unions and some states may outright ban gay marriage. That's how it is.

Marriage isn't race. Anyone who equates the civil rights movement of the 50s and 60s to gay marriage is making a false analogy. The oppression in the South during that time was in violation of the 14th Amendment. Marriage, unlike voting, is not a right, it's a privilege regulated and licensed by each state. As such, each state's voters, through their legislature, determine their social structure for which marriage is a part of. If a state wants to protect gay marriage, they need to amend their state's constitution through the legislature, not force it through judges that may forget what their job is.

I'm all for gay marriage. I think gay couples who wish to make the pledge of marriage and build a family should be allowed to, but not at the expense of the foundation of our nation's political structure. It's not worth giving a future president and/or congress unlimited powers through the courts because gays couldn't handle working within the framework that has created the most diverse, most stable nation on Earth.

Cross-posted at Conservative Underground

1 comment:

SPender said...

Prop 8 has nothing to do with the US Constitution. It is a State issue regarding the amendment OR revision of the CA Constitution. The Voters can amend the constitution by a simple majority vote, BUT if Prop 8 is judged by the courts to be a Constitutional revision, it will be rejected and turned over to the State Congress where Prop 8 must pass by 2/3. Currently, activists will challenge Prop 8 as being a Constitutional revision, so that it is rejected and turned over to the CA Congress where it will fail.