GAY MARRIAGE REDUX

Alan Simpson, a retired Senator from Wyoming, argues against a gay marriage amendment on federalist grounds:

In our system of government, laws affecting family life are under the jurisdiction of the states, not the federal government. This is as it should be. After all, Republicans have always believed that government actions that affect someone’s personal life, property and liberty — including, if not especially, marriage — should be made at the level of government closest to the people. Indeed, states already actively regulate marriage. For example, 37 states have passed their own version of the Defense of Marriage Act.

I do not argue in any way that we should now sanction gay marriage. Reasonable people can have disagreements about it. That people of goodwill would disagree was something our Founders fully understood when they created our federal system. They saw that contentious social issues would best be handled in the legislatures of the states, where debates could be held closest to home. That’s why we should let the states decide how best to define and recognize any legally sanctioned unions — marriage or otherwise.

As someone who is basically a conservative, I see not an argument about banning marriage or “defending” families but rather a power grab. Conservatives argue vehemently about federal usurpation of other issues best left to the states, such as abortion or gun control. Why would they elevate this one to the federal level?

While I agree this is not something the federal government needs to get involved in, the states’ rights argument falls flat here because of the Full Faith and Credit clause:

Article IV, Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

Interpretations of this section are complicated and somewhat outside my expertise. But it’s quite conceivable that a court now or in the future would rule that a marriage between gay partners in any state would have to be recognized by all others. So, once any state goes that route, the other states in effect lose their ability to govern on this issue.

The so-called Defense of Marriage Act may or may not be Constitutional, depending on how one reads the second sentence in Section 1. But, if it’s not, it would be rather late to pass an amendment once the floodgates opened.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Matthew says:

    I don’t understand why gay marriage advocates who are satisfied with a democratic, state-by-state approach, like Andrew Sullivan and apparently Alan Simpson (is it in the initials? quick, somebody get ahold of Schwarzenegger), don’t just come out in support of a federal amendment which overturns the DMA but also exempts conservative states from FF&C clause intrusions. Let liberal states have their gay wedding cake — but don’t force conservative states to eat it too.

    (Eeek, horrible metaphor alert.)

  2. James Joyner says:

    If I understand it correctly, the amendment currently proposed would do precisely that. The definition is for the purpose of federal recognition and benefits. I’m pretty sure individual states could still permit gay marriage and/or civil unions.

  3. Kevin Drum says:

    I don’t think the federalism argument falls flat at all. After all, the FF&C clause applies to lots of other things too, and that doesn’t make federalism any less valid in those cases.

    My biggest problem with the whole concept is, indeed, federal. I don’t really care much if you call it “marriage,” but gay partners *should* have similar legal rights: inheritance, Social Security, hospital visiting rights, etc. I think that’s really the key point.