07/14/2004: "Manning the barricades for states' rights"

There's a lot of tendentious editorial opinion out there today about the Federal Marriage Amendment. (See the New York Times, the Boston Globe, and the Los Angeles Times for three examples). One of the more ridiculous harrumphs comes from the Washington Post:

The combination of this proposal's radicalism and its consideration in the middle of an election year commands a strong rebuke from those members who retain enough shame to oppose a constitutional amendment whose express purpose is to deny equal treatment to U.S. citizens. Even opponents of gay marriage, about which people of conscience legitimately disagree, should balk at this measure, which would prevent a democratic majority in any state ever from recognizing it.

A few responses:

1) "Radicalism"? It's now radical to support the standard of marriage that has prevailed throughout the history of the United States? This is a use of the word that George Orwell would have appreciated.

2) "Deny equal treatment to U.S. citizens": Just because this line gets repeated ad nauseum doesn't make it true. All U.S. citizens retain the right to marry. To say that gays are denied equal rights because they can't marry someone of the same sex is the same as saying that a mother who is not permitted to marry her son is denied equal rights. It also must be pointed out that this line has the effect of undercutting the states' rights argument that follows. If the FMA denies equal right to U.S. citizens, then every state that doesn't permit gay marriage is doing so as well. This means that unless the Post is willing to say that it's ok for states to deny equal rights, but not the federal government, the editors are actually arguing for a nationalization of the issue, just with a different result.

3) The dedication of the Post to federalism is touching, if more than a little hypocritical. Where is their dedication to states' rights when abortion is being discussed? The idea of letting South Dakota institute restrictions on abortion that New York chooses not to sends the paper's editors into apoplexy. For that matter, consider the incredible number of things that are now subject to federal regulation, everything from wildlife protection to hourly wages to sexual harrassment in the workplace to the proportion of male/female participation in college sports. Yet marriage�the foundational institution of society, more important than government or even newspapers to the well-being of the citizenry, especially children�is the one place where the Post insists that states, rather than the nation as a whole, should make the decisions. Keep in mind, the editors aren't saying that this is a privacy issue, or something that the government should keep out of entirely. The question is where does the authority lie: with the states or with the nation? (Truth be told, the real question is whether the authority lies with the elected representatives of the people or with the courts, but the Post, along with most liberal editorial pages, has avoided framing the issue that way, knowing that an argument for judicial supremacy in this matter will carry no weight with the electorate.) It's solely because they know that they are more likely to get the result they want that supporters of gay marriage have suddenly gone all Confederate on us.

Replies: 8 Comments

on Thursday, July 15th, Baillie said

"It's now radical to support the standard of marriage that has prevailed throughout the history of the United States?"

Yep. That's it in a nutshell. And it's going to get a lot uglier than that before it's all over.

Traditionalists - especially Christian traditionalists - are stubbornly thwarting the dawn of Utopia, you see. The glorious perfection of the human race is endangered by primitives: Back, bigots! For shame!

on Thursday, July 15th, tony c said

I'm amazed at how many people who believe in organic foods, solar energy, herbal medicine and everything else that is natural in the world believe homosexual intercourse and marriage are "natural".

on Thursday, July 15th, Jeff said

While I agree that points 1 and 2 point out deficiencies in the editorial, I feel we should remain open to how contentious point 3 remains for both conservatives and liberals. Take for example Cheney in 2000: "The fact of the matter is we live in a free society, and freedom means freedom for everybody. And I think that means that people should be free to enter into any kind of relationship they want to enter into. It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard. The next step, then, ... is the question you ask of whether or not there ought to be some kind of official sanction, if you will, of the relationship. That matter is regulated by the states. I think different states are likely to come to different conclusions, and that's appropriate. I don't think there should necessarily be a federal policy in this area." Clearly, not even the republican leadership has assumed that the authority to define marriage lies with the federal governmment. What is to stop us from concluding that conservatives have gone the federal route "solely because they know that they are more likely to get the result they want?" Of course, this isn't to pick on the conservatives for displaying the same political opportunism as liberals. It only shows that conservatives and liberals are more alike than different when it comes to political opportunism. But we know this already, and all of this is a sideshow to the real issue. If we agree that the federal government should not be in the business of legislating against certain behaviors unless doing so serves the national interest or the national good, then should we not concern ourselves with the question "does banning gay marriage serve the national interest or the national good?" The reason why the "traditional values" argument (and I am not suggesting this is the only one) for banning gay marriage does not work for many moderate, currently fence-sitting, liberals and conservatives is that they see no reason to believe that gay marriage would put either national interests or the national good at stake. Of course, this debate is the one we are least inclined to address because it is even more contentious than the debate over state vs federal authority! Admittedly, many Christians feel that the answer to this question is a no-brainer, but many liberals and conservatives (many of them Christian, and maybe even enough to keep this question in political limbo forever)do not answer the question the same way. How to proceed?!

on Thursday, July 15th, Greg S said

Ugh. Why is it that this topic is always described as banning gay marriage. The ammendment discussed in the Senate this week would do nothing of the sort. It provided no value judgement on any type of marriage.

ALL it does is protect individual states from being forced to recognize gay marriages that take place in other states.

Yes, each state has the right to regulate marriage however it sees fit. Some require waiting periods, blood test, etc - some do not.
Right now, federal law (in fact, the constituation) REQUIRES each state to recognize a marriage that takes place in another state, even if the requirements are different.

In recent years, many states have passed laws that refuse same-sex marriages. The federal marriage ammendment will become necessary if the judgiciary overrules one of those state laws. States will still have a right to recognize same-sex marriages as they wish. Private institutions like banks and insurance companies will still have the right to recognize same-sex marriage.

on Thursday, July 15th, Athanasius said

Greg: I beg to differ. Both versions of the amendment debated in the Senate defined marriage in such a way as to ban marriages between two people of the same sex in any state. The Defense of Marriage Act shields states from having to recognize marriages that wouldn't be legal under their laws, but the DOMA is almost universally expected to be ruled unconstitutional under Lawrence v. Texas (the sodomy case).

Jeff: See the post I just put up from David Frum. I think his argument that the issue is bound to be nationalized one way or another is right on target. I agree with you that the crucial issue is whether gay marriage is likely to hurt society if allowed. On that, I'd have two responses: one is to point you to the series of articles Stanley Kurtz of the Hoover Institition has written at NRO about the effect of gay marriage on marriage in general in Scandinavia. Kurtz' argument, based on empirical evidence, is a powerful one: once the connection between child-rearing and marriage as its primary context is severed, marriage will be seen as more and more simply the domain of adult preferences, and thus disposable, to the detriment of children.

The other is to repeat the contention I've made before, which is that once you've thrown out any connection between gender and marriage, other connections quickly become untenable as well.

on Thursday, July 15th, Jeff said

Having read the proposed amendment, I am not sure how you come to this conclusion, unless you mean civil unions. I admit, I am no lawyer. But your obseravtion does not make the amendment any more attractive to those who see no social harm in gay marriage. For many, the amendment still constitutes a ban on practices over which the federal government has no compelling interest because they percieve no discernable social harm in them. Ban this, restrict that, we are still talking about a widely felt perception that this amendment abuses a proper understanding of compelling public interest.

on Thursday, July 15th, Jeff said

Athanasius, just to be clear, the last post is directed at Greg, although I don't forsee any confusion about this. I agree entirely that this issue is bound to be nationalized. Clearly, it already is. I'm not convinced this is a bad thing, regardless of how things turn out. In a way, my post is intended to shift our attention away from the state/fed authority question because I feel this is less important for moving moderate opinion one way or the other than is the question of compelling interest. Additionally, I don't see how we can begin to address authority questions without begging interest questions. I may be wrong about this, but I have been wrong about plenty of things before. I understand that you feel there is a compelling interest, and that this merits federal involvement. The challenge, however, is that the question of compelling interest is EXACTLY what people disagree about, apart from WHATEVER rhetorical wrapping individuals (or newspapers) give to their political speach (sorry, no italics available). If we set aside for a moment all the bad rhetoric and politicking on both sides, we are left with this challenge. I am inclined to think that a number of people in the middle on this issue are waiting for someone in authority to convince them that gay marriage is so dangerous, so damaging to society, that we should not even allow ourselves to risk it. For many, the Kurtz research and the slippery slope argument fall well short of this standard, or may at most push in the direction of banning "gay marriages" but allowing civil unions, or arguing for state preference.

on Friday, July 16th, Greg S said

Looks like I stand corrected, though I still need to read the bill myself. My perception of the proposal came from a proposal I read that must have been a potential compromise.

However I still stand by my refusal to see this as a ban on anything, or an effort to take away anyone's rights. Everyone would still have a right to get married, and marriage would be defined as a union between a man and a woman.

Everone in America has the right to hunt, but we've decided it's appropriate to regulate which animals and how many of each are fair game (pun intended). Although many disagree, society as a whole has agreed that it's better in the long run to maintain certain restrictions. You can still shoot your gun as many times as you want, but if you choose to hunt, you must follow the rules.

Same sex partners will still be allowed to be partners. But, if they choose to marry, you'll have to find someone of the opposite gender.