Thursday, June 30, 2011

Obama's Principled States-Rights Marriage View

     The Obama Administration has been coming under alot of fire from equality advocates for its view that marriage equality is an individual state issue and that federal encroachment into that jurisdiction is unacceptable. Though LGBT advocates will cry foul - for they look upon states like my home state of Tennessee and realize that marriage equality is a long way away - Obama's position is actually quite principled and, in my opinion, the best position to take regarding the issue.

      The issue of marriage has been under state - not federal - jurisdiction ever since this country was founded. The states have decided who they wanted to allow to get married for hundreds of years, and the federal government has respected this jurisdiction by recognizing all marriages performed by these states. But in 1996, this all changed, and the Federal Government inserted themselves into the marriage issue by passing the Defense of Marriage Act (DOMA). This law specified that only marriages between a man and a woman would be recognized by the Federal Government, no matter what the states did regarding the marriage equality issue. As many know, this law is winding its way through federal courts and has been deemed unconstitutional by said courts because it violates the states historical right to determine who is and who is not married. The decisions are not about "gay marriage" per say, but it is about the level of federal control that should be allowed in a states decision.

     The Obama Administration recognizes this fact; and it is one reason why it is fighting so hard against DOMA. In principle, in order to be consistent with their position on DOMA, they would also have to fight against a federal law that mandated national marriage equality; because that law violates the very essence of state jurisdiction over marriage.

     Not all see this view of State jurisdiction as legitimate, and some - such as former Clinton advisor Richard Socradies - go so far as to say that it is fundamentally anti-American. He stated, as quoted by ABC news,
This states' rights argument is a separate but equal argument. Would the president have thought it right to let the states decide on the issue of interracial marriage, or on whether or not women should be allowed to vote?
     This argument, though it may seem correct, is actually a red herring. You see, it asserts that if the Federal Legislative and Executive branches went with a "states rights" approach, we would see separate by equal treatment - using, for example, anti-miscegenation laws. Though it is true that anti-miscegenation laws created a patchwork of marriage rights in the states, in making this argument, Socradies fails to recognize the difference between a Legislative/Executive branch passing a law, and rights gained under the Constitution. If state law violates the federal constitution, then it must be struck down, because the Constitution is the supreme law of the land, above both state and federal governments. This is why, for example, anti-miscegenation laws were struck down, because of their violation of the 14th Amendments equal protection clause.  But, when the Legislative and Executive branches invade the arena of states rights in regards to marriage law - whether pro- or anti-marriage equality - with federal legislative law; that ALSO violates the Constitution, per the 10th Amendment. Thus, if anti-gay state constitutional amendments violate the Constitution, then yes, they can be and will be struck down (just like anti-miscegenation laws), and the Court has that authority. But at the same time, until then, the federal government must respect the limits of its Constitutional authority, and not infringe upon state jurisdiction to do what it wishes, a position that the Obama Administration is holding to quite well.

2 comments:

  1. Okay, I think I understand your point and can agree to it more or less. I actually tend to believe that marriage equality is a constitutional matter and should be solved by court challenge rather than legislative efforts anyway.

    I will note that the "states right" argument does concern me in that I don't want to get married in New York only to have my marriage nullified simply because my employer requires me and my spouse to move to, say, Arizona. But again, I see that as a constitutional issue to be decided by the courts, which you are allowing for.

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  2. Exactly Jarred!! Though we might like to see the issue of marriage equality in purely legislative form, I have a feeling that if the Legislative and Executive branches passed a law mandating marriage equality that they would lose based upon historical State jurisdiction.

    I for one do think that the Courts are our best option and only Constitutional option for full nationwide equality. But though this is the case, we can still hold out hope that states like Tennessee - and even Arizona - would repeal their amendments. It gives us something to work for.

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