States’ Rights and the Gay Marriage Debate

English: United States Supreme Court building ...
English: United States Supreme Court building in Washington D.C., USA. Front facade. (Photo credit: Wikipedia)


I’ll start by saying that I think the whole gay marriage debate is stupid. It’s a distraction perpetuated by zealots on both sides to distract us from the more important issues like the ever increasing debt and the anemic economy. (For my simple senator solution to the problem read my post A Victory for Love?)


But there is one important issue that the recent cases before SCOTUS raise, namely states’ rights.


The point was raised in a recent discussion with a friend that gay marriage isn’t a states’ rights issue but a human rights issue. It could be that. Legitimate arguments could be made either way (I’m not going to take the time to make them because, again, I think there are more important things to discuss). But it is most certainly a states’ rights issue. Just as, in fact, slavery (which is most certainly also a human rights issue) was. Why? The 10th Amendment.


It states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since marriage and slavery were not covered by the Constitution at its inception this means that those issues had to be addressed by the states individually. It could be said that slavery was covered by certain clauses of the Constitution prior to the passage of the 14th Amendment (something I agree with) but, as we all know, a very bloody war had to be fought to resolve that argument and, unfortunately, sometimes right only comes about by might. Marriage, of course, is still not addressed by the Constitution or any of its amendments.


Now, why is it important that these are issues that should be addressed by the states and not the federal government? Because if we argue that they should be addressed by the federal government then the 10th Amendment ceases to have any significance (something that began happening shortly after it was written and continues at an ever increasing speed today with things like federal welfare, education and health care, as noble as those things might be on some [read: individual] level). If we argue this then we might as well argue that, since it is such an important human rights issue then the UN should address it. I’m sure there are many who might agree with that last point but here is why that opinion (and the UN itself, one could argue) is so dangerous.


Practically, the overwhelming majority (all but 15 either in part or in whole) of member nations in the UN do not recognize gay marriage. And there are quite a few nations (54) that oppose not only marriage but other homosexual “rights” (several of these even put homosexuals to death). So there’s not much chance that it would happen today. And even if it did, what’s to say that tomorrow an opposite minded majority reigned supreme. And so the same goes at the federal level.


I can use abortion as another example. This too should be a states’ rights issue even though many folks would argue that the life of an unborn child is one of the greatest human rights issues we face today. The problem is, although many folks feel this way, there are many that feel the exact opposite (abortion is currently opposed by about half of Americans). So instead of passing so sweeping law that covers all 50 states, why not just sit the issue out and let each individual state come up with its own laws. You’re never going to force someone to agree with your opinion and if such a great number of people disagree (whether its gay marriage or abortion) it does no good to shove it down their throats. Better to appeal to them rationally unless you’re willing to fight a very bloody war over the issue.


Yes, although I ardently agree that fighting the Civil War was a good decision by the Lincoln and the Union, it was still a states’ rights issue and a legitimate argument could be made that, technically, the Northern states had no right as delineated by the Constitution to wage war on the South. Of course, the Union had a moral right and that’s much more important but at the end of the day, if the North had lost then it would have had to continue to recognize slavery as legal in those Southern states and hope that things would change another way.


And that last point is what makes the argument of some on the left so fascinatingly hypocritical. Many of the same folks arguing for gay marriage are the same folks who argue against foreign intervention in those nations which not only don’t recognize gay marriage but put homosexuals to death. You can’t have it both ways. If you’re not prepared to recognize this as a states’ rights issue then it means you feel it is okay to impose your opinions on others who do not agree with you (one of the main characteristics of a statist so it’s no surprise). And that’s fine as long as you’re willing to back it up with military might (and no, I’m not saying that we should fight an actual war over gay marriage although there are plenty of stupid cases of physical violence happening over this issue). That’s fine as long as you’re willing to impose that same view of gay marriage not only on people in other U.S. states but also people in places like Saudi Arabia and the Chicksaw and Iowa Indian Nations.


And, yes, I know some may argue that the U.S. never fought a war to end slavery in another nation. I’m not arguing that it should have or shouldn’t have, just that, if it had, those who supported the initial war would have to support the ensuing war on moral grounds to be consistent.



A Victory for Love?

Last night New York became the sixth state to “legalize” gay marriage and, not surprisingly, many people across the nation are celebrating the legislation. Fine. Whatever. Regardless of what my religious convictions may be, my libertarian streak leads me to not care much either way. Despite what Fred Phelps and others on the “religious right” may say, the world is not going to come to an end because the New York State Legislature decided to recognize the legal status of homosexual marriage. Neither, though, will anti-gay sentiment be completely squashed across the land. In fact, once all the cheering and jeering from either side calms down it really isn’t going to affect that many people. At the absolute most it will grant about 8% of homosexuals  the opportunity to have their union legally recognized as marriage by the State of New York (based on 2000 census data showing that 8% of homosexuals identify as being part of a single household; of course not all of these couples want legal recognition for their relationship). Of course there is the very real potential that it may affect religious communities and free speech overall but more on that later.

The big problem I have with what’s going on is the way this issue continues to be framed by gay marriage supporters. Immediately after it passed, Facebook, Twitter and blogs coast to coast became alive with comments like “Hooray! This is a victory for love!” or “Way to go New York for recognizing the rights of ALL people.” Arguments like these are disingenuous; especially the first one. How is this a victory for love? Despite what some may wish us to believe, gay marriage was not, in fact, illegal in New York before yesterday. I can’t find any references to gay marriage being illegal anywhere in the US at anytime although I suppose one could cite sodomy laws as a good comparison. And those were struck down by a New York appellate court decision in 1980 (and by the SCOTUS in 2003). And let’s face it, even when sodomy laws were in effect they were rarely enforced. In short, yesterday’s decision has nothing to do with love just as a law repealing such a decision wouldn’t be a “defeat” of love. Love can not be legislated. Prior to yesterday, homosexual Unitarian Universalists and members of the United Church of Christ had no problem walking into their houses of worship and asking their ministers to solemnize their vows. They may not have received a piece of paper from the state recognizing that union, but since when did the county clerk become the arbiter of love?

As for the second, slightly more cogent argument of gay marriage being the recognition of rights, that, too, is largely incorrect. The only right involved with marriage is the right of marriage itself; the right to be joined to another person in a committed relationship recognized by that couple’s (or triple’s or group’s) god (however god may be defined) and, as I just pointed out, that hasn’t been “illegal” in any sense, nationwide, since 2003. Most everything else that comes with marriage is, in the legal sense of the word, either a privilege (spending time away from work to be with a sick spouse) or is a right not infringed upon. If I want to leave my house to my mailman or make my barista the legal guardian of my children I can do that. If I want my poker buddy to be the one who decides whether I live or die while on life support, that’s completely legal too. And as we saw with the Teri Shiavo case, simply being married to someone doesn’t always lead to a simple decision of who gets to pull the plug. (As a side note, that’s why everyone should get a living will that spells out in ridiculous detail what you want to happen if you fall into a coma.) As far as I know, the only privileges which are afforded to legally married couples would be things like survivor benefits for social security and federal pensions, and if that’s the big beef then take the SSA, DoD and USPS to court and I’d probably support you except for the fact that I’d rather just see Social Security and federal pensions eliminated completely.

So why is this such a big deal for “gay marriage opponents”? How might this affect religious communities to the point that passing such legislation was not a good idea?

In short, it’s government putting its nose where it doesn’t belong by trying to legislate social mores. It is no more proper for the government to suggest to me through this legislation that I must condone gay marriage than it would be for government to suggest I must condemn it.

“But laws recognizing gay marriage don’t force you to condone it,” you say? Well, maybe not today and I certainly appreciate the protections within the law for religious and non-profit organizations, but the problem with this type of social legislation and a certain portion of the gay rights movement (again, a certain portion, not all) is that they won’t be content in stopping here. We saw it in California with the terrorizing of old women and church services who dared to voice their opposition to gay marriage, and we see it with “hate speech” regulations that have led to severe legal repercussions for some.

Whether you agree with someone like Fred Phelps or not, one of the things that makes this country great is our right to free speech. As long as we are not inciting violence we can say whatever ludicrous thing we want. Phelps can say gays are going to hell and Perez Hilton can say that members of the Westboro Baptist Church are going to hell. But when we start legislating morality (or “immorality”, as some might say), we begin to erode those first amendment rights. That was the problem with the Civil Rights Act of 1964 despite its overall good aims. Society will never succeed in stamping out discrimination, especially through legal force, nor should it since any attempt to do so is “thought policing”. To be sure, governments should not discriminate. If they offer health benefits and family leave for a heterosexual couple they should offer them for a homosexual couple or not offer them at all. The proper aim of government should be to remain neutral in issues of morality (as long as one person’s morality doesn’t directly infringe on another’s). Government’s proper aim is to allow society to dictate adherence to a moral code on a voluntary basis through education. (Not only is it the right thing to do, in the end it leads to more adherence as people tend to not like being forced into a belief system. Furthermore, it brings things like homophobia and racism in to the light where they have the best chance of being dealt with instead of leaving them in the darkness where they are allowed to grow unbeknownst and at great threat to the world.)

So, then, what’s the solution to this whole gay marriage business? Marriage privatization. People like Ron Paul have it right when it comes to this issue. Government has no role in dictating relationships. If someone wants to live in a harmonious relationship with someone, be they boyfriend, girlfriend, brother, cousin, roommate or all of the above, that’s their business. It doesn’t even matter if it’s sexual in nature or not and government stepping in to recognize it or not recognize it doesn’t make it any more right or wrong in the eyes of the participants or onlookers. The only reason government needs to be involved at all is for child custody and end of life issues; and the marital status of the participants has nothing to do with those things. If I want to leave my estate to fifteen of my second-cousins, give custody of my kids to my next door neighbors and allow my third-grade teacher to come visit me when I’m on my death bed, that’s my business and I can state so in my will.

And not only should libertarian minded folks get behind marriage privatization but so, too, should religious minded folks. By relying on government to recognize a union, couples (or triples or groups) are putting government above God (however one may define God) and love itself. When we realize government has no role in marriage it is then we will truly have a “victory for love.”