An informal poll:
Q1: if you could restructure our constitutional system slightly, so as to remove the decision over gay marriage from the states and place it solely in the hands of the national government, would you do so?
Q2: what are your feelings about Obama’s claim that he personally believes gay marriage should be allowed, but that each individual state ought to make the decision for itself?
Obviously, I’m poking at something here—my guess is that there are a fair amount of people who would give a firm ‘no’ to the first question, while simultaneously being annoyed with Obama for stating much the same thing—but I really am not trying to frame this as a ‘gotcha.’ For one thing, there are clearly some different elements at stake in the two questions. One is strategic and the other is more about what is ‘right.’
In fact many people likely feel that precisely because there is basically zero chance of gay marriage actually falling into the hands of the national government (or rather: in the hands of the political branches), Obama ought to take the principled stand and just say ‘it’s a right and ought to be protected.’ And that’s perfectly reasonable.
Still, I think there is something strange about this. Folks seem to want the benefits of federalism (going slow acculturates people to the idea, demonstrates that it causes no catastrophe, preserves enclaves of rights when the nation as a whole might not protect them) without having to admit that this is really what they’re up to. Again, I don’t say this in an accusatory fashion. This is precisely the sort of very-light hypocrisy that really doesn’t bother me. I’m just interested in what it says about federalism and gay rights in the broader sense.
I will elaborate in post #2 on this subject, coming soon…
I think you’re mixing issues. I don’t really think government should have much to do with marriage. But the government should not create rights for straight people that it simultaneously denies for gays. That is a pure equal protection issue. It would be great if Obama acknowledged that.
But that doesn’t mean that legislation should be at the national level to fix the problem. The problem is unequal protection of the laws. States should get rid of their unconstitutional laws. And the federal government should get rid of its own constitutional laws. But everyone should call out the states and feds whenever they pass unconstitutional laws.
Or to put it slightly differently: marriage should be left up to the state legislatures. Congress has no role. But state legislatures should not be able to pass laws on marriage that violate equal protection. Again, it’s not Congress’ job to fix that problem. It’s the state legislatures, and the state and federal courts to the extent the state legislatures insist on violating the constitution.
So the answer to 1 is no, but that’s because Congress really shouldn’t have anything to do with marriage and the state should fix their unconstitutional laws. And the answer to 2 is that Obama should call out unconstitutional state laws, but that doesn’t mean he has a role here. (I don’t think Obama takes a position on whether it’s constitutional or not. I think he says states should fix the problem. That’s ideal. It’s better to have a state legislature recognize and fix its unconstitutional laws than to have to resort to the courts to force them to. I don’t see the problem with that principle.)
Point is, I don’t really think there’s much tension.
Yeah, this bleeds into the later parts of my thoughts on this.
But Obama (or at least, the Obama Administration) basically has taken a position on this. The letter from Holder saying that they would no longer defend DOMA says that sexual orientation deserves a higher level of scrutiny. In the circumstance where it matters, they have already made it clear that they stand on the side of equal protection.
Of course, that doesn’t square with the stated belief that this is a matter for federalism. And it’s totally fair to identify that. But I just don’t see a lot of daylight there. Obama has said, basically, ‘I would vote against these laws’ and has said ‘sexual orientation is a protected constitutional class.’ He clearly should go the final little step and say ‘there is not even a rational justification for these laws, much less a compelling one, so the courts should strike them down’ – but I think it’s pretty understandable why he doesn’t want to frame it that way.
But anyways, read what I post tomorrow and see if that works any better for you.
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What doesn’t that square with federalism?
I think Obama is saying (correct me if I’m wrong here) that marriage laws are a matter for state legislatures. Obviously, state legislatures should only pass laws within their constitutional authority. I don’t think taking the view that a marriage law violates the 14th amendment has any tension with federalism.
The fallacy in what you’re saying is your assumption that federal judicial enforcement of the constitution is somehow anti-federalism. A federal court invalidating an unconstitutional state or federal law on equal protection is neither pro or anti-federalist.
Pick an area that everyone would agree really should be left up to the states. Then imagine a few states decide to do something totally racist in that area. Obviously the President can say the area is something that should be left up to the states, and there’s a 14th amendment violation in the way the states wrote the law.
Howdy! Do you know if they make any plugins to protect against hackers?
I’m kinda paranoid about losing everything I’ve worked hard on.
Any recommendations?