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.