State’s Rights Is Not The Answer To The Same-Sex Marriage Debate
Does the 10th Amendment contain the answer to the same-sex marriage debate? Not really.
Texas Governor Rick Perry, who will likely be announcing his candidacy for the Presidency within a month or so, is making news today for comments he made in an interview with the Manchester Union-Leader regarding same-sex marriage and its recent legalization in New York:
In a telephone interview, Perry, who chairs the Republican Governors Association, described himself as “a full-throated unapologetic fiscal conservative” and “an unapologetic social conservative” who is “pro-life” and “pro-traditional marriage.”
But while Texas has written into its constitution that marriage is defined as being between one man and one woman, he said New York’s recent decision to implement same-sex marriage “is New York’s prerogative.”
Perry made essentially the same statement in an interview with the Des Moines Register (noticing a pattern?):
Perry, who is considering running for president, at a forum in Colorado on Friday called himself an “unapologetic social conservative” and said he opposes gay marriage — but that he’s also a firm believer in the 10th Amendment, the Associated Press reported.
“Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That’s New York, and that’s their business, and that’s fine with me,” he said to applause from several hundred GOP donors in Aspen, the AP reported.
“That is their call. If you believe in the 10th Amendment, stay out of their business.”
There is a certain appeal in this position for advocates of same-sex marriage in that, unlike many of the other Republican candidates for President, Perry doesn’t appear to favor a Federal Marriage Amendment that would place the definition of marriage in the Constitution, thus making it impossible for any state to permit same-sex couples to marry. Given the fact that Perry is poised to become a top tier candidate the moment he enters the race, and that he has credibility among the social conservative wing of the GOP that someone like Mitt Romney does not, it’s also easy to see this as what one blogger calls a “watershed moment” for the GOP, and what Adam Serwer calls a recognition of the fact that blanket opposition to same-sex marriage is no longer a viable issue for the GOP:
If Perry gets into the race, this kind of positioning could blunt the growing distaste for anti-gay discrimination among American voters. In a general election, it could make him more palatable to those with conservative views who aren’t willing to countenance anti-gay bigotry. One could argue that, although President Barack Obama’s position on same-sex marriage is “evolving,” that absent the Tenth Amendment argument, Obama’s stated position on marriage equality is only somewhat to the left of Perry’s. In the aftermath of the passage of New York’s marriage equality law, Obama said that “Each community is going to be different and each state’s going to be different.”
On the right, Jennifer Rubin and Alana Goodman see a position like Perry’s as something that could potentially be palatable to both social conservatives and the more socially liberal elements of the GOP. It’s also a position that could potentially appeal to younger voters for whom the GOP’s stance on issues like homosexual rights is pretty alien.
At the same time, though, there’s something about this 10th Amendment approach to same-sex marriage that’s incomplete.
For one thing, it ignores the issues of how the law ought to handle American citizens who are legally married in a state that recognizes same-sex marriage and then move (or travel) to a state where same-sex marriage is illegal. Under current law, specially Section Two of the Defense of Marriage Act, their marriage is invalid as soon as they cross the state line, and whatever rights they might have as a marriage couple (including rights related to hospital visitation, or the right to make medical decisions when the other partner is incapacitated) no longer exist. Would Perry agree that this is an impermissible intrusion on both individual liberty and the Full Faith and Credit Clause? Even if one agrees that the 10th Amendment means that a state does not have to license same-sex marriages, that should not mean that it would be permitted to refuse to recognize a validly performed marriage from a sister state.
Another issue the 10th Amendment argument ignores the Supreme Court’s clear holding in Loving v. Virginia 388 U.S. 1 (1967):
The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888)
If marriage is a fundamental personal right, then clearly the 10th Amendment does not give the individual states the right to violate the same without reason. As Judge Vaughn Walker noted in Perry v. Schwarzenegger, there simply is no rational basis for prohibiting same-sex couples from marrying:
Proponents’ argument that tradition prefers opposite-sex couples to same-sex couples equates to the notion that opposite-sex relationships are simply better than same-sex relationships. Tradition alone cannot legitimate this purported interest. Plaintiffs presented evidence showing conclusively that the state has no interest in preferring opposite-sex couples to same-sex couples or in preferring heterosexuality to homosexuality. See FF 48-50. Moreover, the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular. Moreno, 413 US at 534.
(…)
In the absence of a rational basis, what remains of proponents’ case is an inference, amply supported by evidence in the record, that Proposition 8 was premised on the belief that same-sex couples simply are not as good as opposite-sex couples. FF 78-80. Whether that belief is based on moral disapproval of homosexuality, animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate. See Romer, 517 US at633; Moreno, 413 US at 534; Palmore v Sidoti, 466 US 429, 433 (1984) (“[T]he Constitution cannot control [private biases] but neither can it tolerate them.”).
(…)
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples. FF 76, 79-80; Romer, 517 US at 634 (“[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”). Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment.
Finally, there’s the entire concept of “states rights” itself. It’s a concept with a checkered history, mostly associated with racial segregation and secession. It has little support in the law. And, as Stephen Green noted in a post last year, its an idea that is entirely incompatible with individual liberty:
We need to give up this notion of “states’ rights.” First of all, it’s in bad taste. The phrase used to be code for “Jim Crow.” And while I’m certain that’s not true for 99% of us, we can — and should — do better than to emulate vile racists. Secondly, however, “states’ rights” is a misnomer. It’s an impossible thing. It doesn’t exist, and shouldn’t.
Let me explain.
I remember reading once somewhere that:
All men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
In other words, individuals have rights, and governments are instituted with powers to protect those rights, and are (or ought to be) restricted from abusing them.
With me so far? Individuals have rights; governments have powers.
As Green goes on to point out, the ongoing tension between the state and Federal governments was instituted to protect individual liberty not to give some amorphous entity called a “state” rights over it’s citizens. In fact, the Constitution specifically provides the Federal Government with the power to step in when the states step over the line:
One of the tensions that exists between Washington and the states is that Washington has the duty — the power — to “guarantee to every State in this Union a Republican Form of Government.” And when a particular state government discriminates against 20, 30, 40% of its citizens, then it’s no stretch to argue that that state no longer enjoys a republican form of government. At least not how republicanism is properly understood in this country.
More importantly, we fought a war that pretty much resolved the issue of state’s rights, and afterwords passed an amendment that significantly altered the relationship between the states and the federal government. Whatever the “rights” of the states may have been before the ratification of the 14th Amendment, they were significantly cut back by it’s adoption. So it is pointless to talk about the 10th Amendment in a vacuum as if the 14th Amendment doesn’t exist.
Green closes out with the most important point:
States don’t have rights. Individuals do. It’s time we went about the business of restoring those rights, without alienating a huge constituency which suffered too long without them.
In the end, the states rights appeal on the same-sex marriage issue is a rear-guard action by opponents of the idea who realize that they are losing the battle. By hitching their wagon to the “states rights” mantra, it seems to me, they hope to turn their anti-gay bigotry into an appeal to democracy despite the fact that, in the end, individual liberty is not defined by majority rule. Politically, this is a way to step away from the same-sex marriage debate without looking like they’re in full retreat. In reality, though, the direction of society is clear.
So how does your argument apply to abortion rights?
There’s an inexorable progression to the ultimate legalization of same-sex marriage nationwide. While the activists can rail against the speed of change, or voice their anger that there are any intermediate steps from the status quo ante to that end state, it just doesn’t square with reality. These things are going to move more slowly some places than others, and the States’ Rights rationale will only stand for awhile before it falls.
Which is not to say that the activists shouldn’t continue to, umm, activate. Without the pressure they provide, the process would undoubtedly slow. But expecting change to happen overnight is fantasy.
@hey norm: Abortion and marriage don’t share much in common, and on the points Doug mentioned relative to States Rights, I can’t think of anything they have in common.
I’m old enough to remember states rights segregationist/apartheid laws in the south.
I spent some time there with separate drinking fountains, separate bathrooms, back of the bus laws (though white, I once ran afoul of them in Memphis, a tiny white southern lady kindly informed me that I was sitting in the “colored” section and the bus would not move till I moved to the white section where she offered me her seat) and the miscegenation laws, segregated schools and on and on.
I remember hearing about how northern mixed race couples traveling in the south were under constant physical threat and in fact could not sleep together or eat together in most public places. And remember the term “mixed race” did not mean strictly black and white..it could be and was applied to any mixed race couple. Those were all states rights. People should look into the Texas laws concerning Hispanics of that state in the 1950’s and later. That was all covered by states rights. States rights in practice give a lot of leeway for government, politicians and law enforcement to look the other way when “problems ” arise.
I can’t say that same sex marriages don’t bother me….but at the same time they don’t directly affect me either. And on further thought, of what business is it of any government to decide who may love and marry who. As long as churches are not forced to conduct same sex marriages if they choose not to…then I don’t care (too much).
Marriage is a matter for civil law and civil laws need to be the same throughout the US. When same sex couples run into divorce laws they may rue the day, as do heterosexual couples.
As for Texas Rick Perry, former democrat, why would he want to be President of a Union he talked about breaking up. Maybe it’s 1845 in Congress and the White House again.
People have different rights depending on what state they reside in. I don’t see why my state gives me certain rights that another state has to give them, unless it is a federally guaranteed right, which is still an open question. For example, if I convince my wife to move to Texas and we get divorced, she will not enjoy the benefits of having been married in Illinois; she will only receive what rights Texas gives (i.e., she will be screwed over by the move).
@lou91940: I realize it’s “conventional wisdom” that Gov. Perry wants to break up the Union, but please provide a link to where he actually advocated that.
As far as I know, people take the following to mean that Gov. Perry is a secessionist:
In my opinion, it’s at best disingenuous to interpret that as wanting to break up the Union.
Part of the oddity of this argument to me is that same-sex marriage unions were recognized in my state partly based upon the argument that it would make the state more attractive for young people to want to stay here or move here. The notion that such a marriage would only be a transitory transaction as the couple moved on to Arkansas completely undermines that point.
Perry has gone on many times about Texas having a “right” to secede. They don’t, and his comments are little more than a veiled, yet legally hollow, threat.
@PD Shaw:
Well, not completely. If they were, say, visiting family in Arkansas and one of the spouses fell ill or suffered an injury and was hospitalized, the other spouse wouldn’t be able to take advantage of the “spousal rights” they would have had back home.
@mantis: I can recall him mentioning it once, not many times, and never in a “well, we’re just gonna secede” manner. Do you recall, or even better, can you link to an occasion beyond the one I quoted above when Gov. Perry mentioned it?
Sadly, this “right of secession” is a commonly, mistakenly held belief among many of my fellow Texans, but I’d be surprised if someone didn’t tell the Governor to shut up about it the one time he referred to it.
Boyd, I think federal law already requires hospitals to grant same sex partners visitation rights and the power to make medical decisions on their behalf in such circumstances. The closest I can find is this article about Obama directed the Secretary of Health and Human Services to make it so. Link
And whatever Perry meant, that stuff isn’t going to play well in other parts of the country. I can only assume at that time, he didn’t contemplate running.
@Boyd: In the 1950’s and 60’s, the south was going through the civil rights struggle. There some great Southern leaders that could have helped settle the civil rights issue in a fair and orderly manner (Russell, Ervin, Eastland, Faubus) and everyone would have been happy, but then the Federal government started sending troops in, sending the Attorney Generals down here, and outsiders came down south to meddle and force their ways on the Southern people. This produced a lot of turmoil and strife that could have been avoided if the south had been left alone to settle their affairs. It also delayed civil rights progress for decades.
Then President Johnson gave the south to Nixon and the Republicans with the signing of the Civil Rights bills in the ’60″s. (Obama will never be re-elected if he can’t carry at least 3 southern states, which now looks impossible.) The Federal government also basically ignored the Constitution that gives the power in these matters to the states.
The people (a small minority of a small minority) who are pushing the gay marriage agenda need to slow it down and let the voters decide instead of creating all of this turmoil and ill will
.
@Racehorse: I’m not sure why you address your history lesson to me, Racehorse; I lived through the Civil Rights era in Texas. And I certainly haven’t advocated the Federal Government getting involved in this debate in any way.
But I’ll disagree with your final point, which appears to be the only one that responds to anything I’ve said. If the activists don’t “activate” (do I get credit for coining a new term?) to some degree, the progress they desire will slow. Of course, prancing about in sexually explicit drag and shoving their sexual preference in everybody’s face would be counterproductive in these states.
Same-sex marriage/civil unions will happen everywhere at some point, regardless of what the activists do (repeal of DADT will take care of that). But it will take much longer if they don’t keep pushing.
Indeed, almost all civil rights advances were based upon grass roots politics, not Constitutional certainties. The one exception being slavery and race.
Why is there no Equal Rights Amendment? It became unnecessary.
@Racehorse: “outsiders came down south to meddle” Are you referring to the Civil War? Is that all you remember?
Marriage is already a matter of state’s rights. States determine who can perform marriages. States determine laws governing divorce. States determine the legality of marriages, including such factors as prerequisites like waiting periods or blood tests, licensing, consanguinity, and age of consent. Thus far, no one has challenged the authority of the states in those areas.
The key element, which Doug briefly touched, is the “full faith and credit” clause. That will, in all likelihood, be the determining factor. And it will probably be treated the way the issues above are resolevd — one cannot marry in a state that doesn’t sanction same-sex marriages, but the states will have to honor the marriages performed legally in another state.
J.
@hey norm: Your question seems off topic to me, and so was awarded a “Dislike.” Questioning Doug’s position relative to abortion rights is a transparent ploy to divert the discussion to a parallel and unrelated question. Enough of the games! Sheesh!
@Jay Tea: I don’t think the dispute involves the full faith and credit cluase. The clause was in force at a time when slavery was legal in some states and not others. Could one conclude that the founders believed that if slavery was legal in some states, it must be legal in other states? Could one take one’s slave relationship to the North and require, under federal compulsion, for it’s recognition?
No, I think same sex marriage must be required by the equal protection clause or it’s a matter of state disposition.
Oh my, I’m sure that Bull Connor, Strum Thurmond, and George Wallace, among many other “great” Southern leaders, could have also helped “settle” the civil rights issue…yeah, everyone would have been happy alright…
Yeah, that uppity Johnson, who did he think he was signing laws that gave people rights they should of had since birth? If that meant giving the South away to racists and bigots, well hell, they can have it…
And yet, states were forbidden from practicing anti-miscegenation laws related to marriage…
At the time, my parents’ marriage would have been illegal to perform in some states. So I probably have some prejudice against states’ rights arguments in this area.
What I really don’t get is how the Federal government can Constitutionaly enforce a law ignoring the marriages approved in any state. Sure my parents’ marriage (55 plus years and still going strong) wasn’t allowed in some states but the US government certainly had no problem.
@PD Shaw:
See: Fugitive Slave Act
The fixation on race is entertaining. It seems born of the belief that if somehow one side can introduce racism into the argument, even if as an analogy, they think they can always win. As I noted above, there are plenty of non-racial restrictions on marriage that states control. Should we do away with those as well?
Let me toss in one more, and this one could very well blow up in my face, because I don’t fully know the answer, but what about bigamy? My casual research indicates that it, too, is prohibited on a state-by-state basis (the current challenge in Utah is against the state’s ordinance), and the Morrill Anti-Bigamy Act of 1862 was written to apply to “territories” of the US — as in, areas not incorporated into states. I tentatively conclude that prior to statehood, bigamy in the territory of Utah was covered by an act of Congress, then later by a law passed by their government once they had achieved statehood.
J.
Not really…bringing race into the conversation is meant to show how we previously had laws against different ethnic groups getting married and such laws were struck down as unconstitutional and how laws against SSM should also be struck down for the same reasons…
Umm no, Mr. Tea, my introduction of race illustrates an obvious case where the Federal government overruled states’ laws on marriage and was not used as a ‘get out of jail, free’ card. While there clearly are parallels between racial and homosexual (& religious) discrimination, I’ve found that the ability to recognize is often inhibited by strong emotional drivers. But I’m not going to generalize that observation to you, Jay.
To the question of whether I’d prefer uniform laws about who can get married
– Actually, that makes a great deal of sense to me. However the main variations between states relate to age of consent and genetic relatedness and are relatively small quibbles. In any case, heterosexuals may marry outside their home state with their marriages being recognized by all other states and the Federal government. Contrast this with marriages between same-sex partners: In most states their are no conditions under which they may wed and even if they marry legally, their marriages aren’t recognized. In my opinion this situation is ripe for evaluation under the US Constitution.
Aaaaaand that’s why there is a semi-movement among some conservatives to repeal the 14th amendment. These are folks who wish the Civil War had ended, shall we say, differently. I was, until somewhat recently, completely ignorant of these loonies. I realize they’re not a large group, but it still freaks me out.
I think the issue of slavery points in another direction. If I obtained ownership of a slave in South Carolina, either by contract or judicial order, I would never have believed it possible that I would be able to move to Illinois to reside and expect the state would be forced to give full faith and credit to my ownership of human property.
@Argon:
Umm no, Mr. Tea, my introduction of race illustrates an obvious case where the Federal government overruled states’ laws on marriage and was not used as a ‘get out of jail, free’ card. While there clearly are parallels between racial and homosexual (& religious) discrimination, I’ve found that the ability to recognize is often inhibited by strong emotional drivers. But I’m not going to generalize that observation to you, Jay.
Argon, I’m in FAVOR of gay marriage. I was delighted when NH legalized it. I oppose HOW it has been done in some cases (MA, CA, etc.) when it’s done by a single official or a panel of judges, but am happy when it’s done by legislation or Constitutional amendment. So the “emotional drivers” schtick doesn’t apply here.
I recognize that race was a factor in the past, and the federal government stomped all over that, and I support it. Now take your argument a step further — argue how the same principles that applied there apply here.
As I noted, states already discriminate in many ways when it comes to marriage. To repeat the ones that I think are germane, consanguinity and age of consent. (We’ll skip the prerequisites ones, as they don’t say “no,” but rather “first, you have to.”) Age of consent can be overcome by patience, but what about consanguinity? Ain’t no outgrowing that particular ban. Why should cousins be allowed to marry in some states, but not in others? As Interested noted, there are ethnic and cultural groups where such things are not only permitted, but encouraged.
And let’s not go into bigamy. I got my own arguments against that one.
Oh, hell, why not. The Mormon Church gave that up a long time ago, but a lot of Muslim cultures permit a man to have as many as four wives. Osama Bin Laden had a few, and most Saudi royalty do as well. Should we strike down the aforementioned Bigamy Act in deference to tolerance for their culture and ways and beliefs?
J.
@Jay Tea: I recognize that race was a factor in the past, and the federal government stomped all over that, and I support it.
History: It was the Supreme Court that stomped on interracial marriage prohibitions in Loving v. Virginia, not the legislative or executive branches of the Federal government. But you don’t support judicial review for gay marriage. Feh.
Indeed, Argon…I guess to the Jay Teas of the world, Brown v. Board of Education of Topeka and a whole group of other rulings involving civil rights that followed are also illegitimate since all these decisions were reached by a panel of judges…and yet, Jay Tea tells us that he is supposedly in favor of SSM…
Interested, Brown v. Board’s primary function was to… wait for it… overturn Plessy v. Ferguson, which established “separate but equal.” It took the Civil Rights Act — passed by Congress — to finally give the teeth to the 13th, 14th, and 15th Amendments.
J.
Ohhhh, I see…decisions by a panel of judges are just fine so long as they only overturn the decisions of other panels of judges…by the way, there were numerous decisions by the Supreme Court regarding civil rights, not just Brown v. Board of Education of Topeka…
@jd:
No, this occurred in the 1950’s and ’60’s. It also occured after the Civil War with the “Reconstruction” that set the south back 100 years, the only time that US citizens had to live under an occupied force. Down here, we don’t forget.
Thanks for your comment.
The fact is that there are multiple, Constitutionally legitimate mechanisms that can shape laws and government conduct. As a matter of taste one can prefer one mechanism over another but developing an objective, blanket argument for exclusivity is pretty darn hard. The nation evolves. Concepts about rights and the relationship of government to people and states do too. Response to changes can come from all branches of government. Sometimes the legislature lags, other times it’s the judiciary. And sometimes even the executive branch leads (e.g. racial integration of the military) before compelled by law or the court.
Losers of major wars and their descendants rarely do…of course, no losers have taken it as badly as the followers of the Lost Cause…
@An Interested Party: No, I’m pointing out that the Supreme Court’s great accomplishment in civil rights cited above was pretty much nothing more than cleaning up its own mess. That it was fixing the gross injustice it inflicted the nation with Plessy v. Ferguson.
J.