Politics

Room for Disagreement on Gay Marriage

Understanding the White House's decision to stop defending the Defense of Marriage Act

|

President Barack Obama has been denounced by Republicans for asserting federal power at the expense of state sovereignty. But last week, he was denounced by Republicans for … not asserting federal power at the expense of state sovereignty.

It happened after the Justice Department announced it would not litigate to uphold the Defense of Marriage Act (DOMA). The president thinks one section of the law is unconstitutional—a section that prohibits the federal government from recognizing same-sex marriages.

In practice, that means married homosexuals lack all sorts of privileges extended to married heterosexuals. They may not file their federal taxes jointly, claim various tax breaks, collect Social Security survivor benefits if their partners die, or take advantage of spousal benefits granted to military personnel and veterans.

Ozzie and Harry may be lawfully wedded in Iowa, but to the federal government they are the legal equivalent of Colin Powell and Charlie Sheen: holding nothing in common.

Obama would like to change that. If DOMA were to be struck down, the federal government would no longer insist that some marriages transacted under state laws are valid and some are not. It would tell states: You decide who can get married, and we'll abide by your judgment.

You want to let gays walk down the aisle? Knock yourself out. You want to deny them the joys of matrimony? Be our guest.

Such deference has always been the norm. There's a range of matrimonial policies between Hartford and Honolulu. Some states allow 14-year-olds to wed with parental and judicial consent, and others don't allow marriage until age 17 no matter what. Some states let first cousins get married, and some don't. Some states used to forbid a black person from marrying a white person.

The federal government has never gotten mixed up in deciding which states are right and which are wrong. It has always had a simple rule: Show us the marriage certificate.

Until same-sex unions came along, that is. DOMA passed in 1996, when it looked as if Hawaii would let gay couples marry. If opponents of gay marriage couldn't prevent a state from enacting it, they figured, they could impede and stigmatize it by singling out same-sex partners for inferior treatment by U.S. government agencies.

For anyone attached to our constitutional tradition and federalist framework, this policy is a mistake for two reasons: It thrusts the national government into a matter where it has no business, and it enforces an irksome uniformity on states with diverse mores and cultures.

DOMA is a double standard writ large. The feds respect the choices made by the people of Mississippi and Michigan, but not those embraced by citizens in Vermont or Connecticut.

But the law is not entirely hostile to federalism. It expressly upholds it, in fact, when it says no state has to recognize a same-sex marriage from another state.

That's as it should be. Since Texas has the power to prevent its citizens from entering into same-sex marriages within its borders, it should not have to respect the same-sex marriages of residents who jet off to say their vows on Martha's Vineyard.

If Texas had to recognize gay unions transacted elsewhere, its law against same-sex marriage would be a grand irrelevancy. Federalism says each state gets to decide for itself, without being trumped by laws enacted elsewhere.

Even if DOMA were to be struck down or repealed, though, this practice would endure. In his 2006 book, Same Sex, Different States, Northwestern University law professor Andrew Koppelman writes, "There is not a single judicial decision that holds that (the Constitution) requires states to recognize marriages that violate their own public policies concerning who may marry."

But if Texas is entitled to decide who among its people gets all the benefits of marriage, New Hampshire should have the same right. Right now, it doesn't. Under DOMA, the federal government respects state authority to do only what it approves, which is a pitiful kind of sovereignty.

Getting rid of DOMA would be a recognition that America has room for more than one policy on same-sex marriage. The bad news is the people of the 50 states may never agree on the issue. The good news is we don't have to.

COPYRIGHT 2011 CREATORS.COM

NEXT: A Rubbish Charge

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The wedding decorations are going to be FABULOUS!!!

  2. Good morning heller.

    Good morning reason.

  3. Conservatives like to be pro state rights or pro-life when it is convenient but the basing of gays, and Obama’s mother is classic.

    1. basing? did you mean bashing or basting…
      either way your comment seems a bit over the top…

      1. The opinion on gays is classic

        It is the subject of my site’s mornings blog

      2. Speaking of basting…

        Q: What is the definition of trust?

        A: A gay cannibal.

        1. Actually, that’s two cannibals having oral sex. But close. =P

    2. You are “rather” a fool aren’t you?

      1. Wow, you fucking genius!

    3. Obama’s momma was gay???

      1. weel, she did go to college 😉

  4. Whatever happened to the inviolability of the mutual, private contract, and why should any state or the federal government grant any special privileges, or impose or imply any parts of the mutually beneficial private contract?

    All state sanctioned marriage should be abolished, yesterday. State sanctioned marriage is nothing more than an attempt at social engineering, and the question of gay marriage is an unintended consequence of that policy.

    It is every state’s responsibility to uphold the inviolability of mutual, private contract.

    1. Lame argument. The fact that gays want a formal marriage contract attests it is more than ‘social engineering’.

      1. It is social engineering in that it is an attempt to, through government force, redefine marriage.

        1. The major dictionaries can handle the definitions of words on their own. Government has a duty to apply laws equally and not to deny a basic human right to people because of their minority status.

          1. Common Sense says that marriage is a husband and a wife.

            Granted Common Sense has been under assault for a long time by progressives (some say it is dead), but doesn’t take away from marriage being a husband and a wife. A husband is male and a wife is female.

            Once again you disingenuously try to conflate two distinctly different issues: the definition of marriage and the contract that bears the name.

            The honest thing to do is separate the word from the contract, and then change the definition of the contract.

            You are trying to change the definition of the contract so you can change the definition of the word.

            1. So-called common sense and the sanctity of the denotation of a word are flimsy bases to rest a policy argument on. Nobody’s talking about anything but equality under the law. Where gay people are allowed to get married, they are called married, and not a single person is harmed in any way by this.

              1. The fact that you and your lying ilk absolutely refuse to consider any manner of having “equality under the law” that does not involve changing marriage from “husband and wife” to “spouse and spouse” shows that the issue is NOT rights, but about a word.

                Any honest person can see this, which is why you cannot.

                1. How do you have equal rights if you have two different institutions for gay and straight people?

                  1. And what is so friggin important about the definition of a word that it trumps equality under the law?

                    1. “And what is so friggin important about the definition of a word that it trumps equality under the law?”

                      This proves that you are a liar.

                      You say it is an issue of rights, yet any compromise that does give equal rights without giving the word is unacceptable.

                      Then you try to turn it around by pretending the word is unimportant, when in fact the word is all you are about.

                    2. And what is so friggin important about the definition of a word that it trumps equality under the law?

                      You can’t make law until everyone agrees on the meaning the words with which the laws are made. If the words and their definitions are malleable, so are the laws themselves.

                  2. “How do you have equal rights if you have two different institutions for gay and straight people?”

                    Easy. Equivalent institutions or contracts with different names and equal legal standing. The only difference would be the word used to name the contract. If the only difference is the word, and you still find it to be unacceptable, then that means you are a liar when you say it is an issue of rights.

                    1. I just find it puzzling why you’d be so hung up on a word. Making the institutions equal would seem to be the most sensible, least problematic way to ensure equal rights. What you’re proposing is “separate but equal.” People aren’t going to go around calling themselves civilly unioned, and I don’t understand why they should have to for the sake of this bizarre hangup.

                    2. I just find it puzzling why you’d be so hung up on a word. You could have all these rights that you claim are the heart of the issue, but you would give them up over a word. You claim it is an issue of rights while you steadfastly refuse any option that does not include the word.

                      The only explanation I can come up with is that you are a liar.

                      Just admit it Tony. Admit you’re a liar.

                      Oh but you can’t do that because that would be honest.

                    3. What am I lying about? Yeah I believe equal rights means equal institutions, not separate but equal. If the law calls the two institutions different things, then they are not equal. If the Bible Thumpers Dictionary wants to keep its definition of marriage unchanged, I’m not gonna get worked up over that. Secular dictionaries will probably just follow reality, though I still don’t understand how a couple exchanged words in a singe dictionary entry harms you or anyone else in any way. You’re asking me to compromise, but for what purpose? If it’s not to maintain an implied superiority of heterosexual marriage, then what’s the point?

                    4. “If it’s not to maintain an implied superiority of heterosexual marriage, then what’s the point?”

                      It is not a matter of superiority.

                      Words are used to describe things.

                      Different words are used to describe different things because they are different.

                      Different does not mean better or worse, it means not the same.

                      A marriage is a union of a man and a woman.

                      A man and a man is not the same thing. It is different.

                      A woman and a woman is not the same thing. It is different.

                      Is one superior to the other? I say no.

                      Apparently you feel differently though.

                      You feel inferior.

                      Well guess what. That’s your problem.

                      That’s your insecurity.

                      You’re pathetic.

                    5. Holy shit sarcasmic, the meaning of words change over time. Did you have a shit fit when mouse was redefine to include a computer controller?

                    6. Tony – Admit that what you really want is to use the word “married”.

                      You claim it is an issue of legal rights, like putting your partner on your health insurance and claiming jointly on your taxes, but when given an option to do those things without using the word “married” you refuse.

                      So it is not about those rights, it is about the word.

                      Admit it Tony.

                      It’s not about rights, it’s about a word.

                    7. If my choice were “separate but equal” or nothing, I’d have to choose the incremental increase in equality. But society is moving inexorably toward full equality simply because there’s not good reason to deny it any longer.

                      Marriage means whatever it means. The definition will follow the policy. I don’t get why policy should have to follow a word’s definition. If gays are legally allowed to marry in a jurisdiction, they are married. What’s the big deal?

                    8. Tony, Tony, Tony.

                      My problem is that it is a dishonest debate.

                      There are two entirely different issues here: Conferring legal protections to same sex couples (which I believe should be done), and changing the meaning of marriage (which I vehemently oppose).

                      The dishonest bit is when you equate the latter to the former.

                      You then accuse those who have a problem with redefining marriage of opposing legal protections for same sex couples.

                      That is a false argument.

                      It is a lie.

                      If you want an honest discussion (and I don’t think you do) then you must separate the two.

                      Can you separate the two?

                      If not then I’m done arguing with you because it is impossible to have an honest discussion with a dishonest person.

                    9. Marriage, in a legal context, means whatever the laws say it means. If we’re changing the laws, we’re changing the meaning. If all the rights and benefits are the same, why not just call it marriage? Why is that something to vehemently oppose? The only possible reason I can think of is that you still want heterosexual marriage to be considered, if not superior, then special or different from other forms of marriage. I reject separate but equal on the same grounds it was rejected for racial segregation: it’s inherently unequal.

                    10. “The only possible reason I can think of..”

                      You think?

                      No Tony, you feel. You don’t know how to think.

                      “I reject separate but equal on the same grounds it was rejected for racial segregation: it’s inherently unequal.”

                      With regards to racial segregation, I oppose laws mandating it but also oppose laws prohibiting it. You, the person who feels instead of thinks, will feel that this means I approve of segregation. I, the thinking person, understand that laws prohibiting segregation are not necessary. If a business owner chooses to discriminate based upon race I will choose not to do business with the jerk. I suspect you would not do business with him as well. Many people would not do business with him to the point where I suspect he would go out of business. If he did stay in business then the crowd that supports him are a bunch of jerks and by looking into his window I know who to avoid. He is actually providing a service by exposing who the racist jerks are.

                      You see, thinking is a wonderful thing.

                      Too bad you can’t do it.

                      Poor pathetic Tony, slave to his emotions.

                    11. You’re the one “vehemently” against changing the definition of a word, which as far as I can tell is not based in policy or equality, but is just a product of your prejudices, so it would seem you’re just as motivated by emotions over thinking.

                      When racial discrimination was legal, it was often in a business’s best interest to continue doing it, since most of his customers were racists, and surely you’re aware that serving blacks could get people into trouble. Anywhere where a majority of people would exert market pressure against racists would be a place where racial discrimination wouldn’t exist in the first place!

                      Your priorities are completely out of whack. First, you care more about the definition of a word than equal rights for gay couples. Second, you care more about the freedom of a business to discriminate than about the lack of freedom this causes for an entire race of people.

                    12. “is just a product of your prejudices”

                      Again you ascribe an emotional motivation where none exists because that is all you understand.

                      Go on and feel whatever it is you are going to feel.

                      I’ve got other more important things to think about than you and your pathetic inability to use your noodle.

                    13. “If all the rights and benefits are the same, why not just call it marriage?”

                      Because it’s not marriage.

                      Husband and wife… hello?

                    14. Because it’s not marriage.

                      Husband and wife… hello?

                      The “definition of marriage” has changed considerably over the centuries, let’s not pretend it’s been set in stone forever.

                      Answer the question. Who does it hurt to change the legal definition of marriage to “spouse and spouse”? What harm is done that justifies treating hetero- and homosexual couples differently under the law?

                    15. “Answer the question.”

                      No. You’re trying to put the burden of proof on me when it is you who wants change.
                      It is up to you to prove that the cornerstone of society must change to appease your feelings of insecurity. Frankly I could care less about your feelings. You are a worm. Not because you are homosexual, but because you do not use your mind. You’re no better than an animal.

                      Piss off.

                    16. I thought the cornerstone of society was the family. And you can have those without a mother and father joined in marriage, by the way.

                      Tony’s right, definitions in the legal sense CAN change. You can rant and complain all you want about what marriage is SUPPOSED to be defined as, but if a state can redefine it, you as an individual can’t stop them unless you can convince enough voters there to change the definition back.

                    17. “you as an individual can’t stop them unless you can convince enough voters there to change the definition back.”

                      That is exactly what happened here in Maine.

                      http://abcnews.go.com/Politics…..id=8992720

                      Though I really dispute the framing of the issue as “allowing same-sex to marry”, and prefer to frame it as “removing gender from marriage”.

                    18. What’s so wrong with that? Right now it seems the ONLY requirement for marriage is that there be two people of opposite sexes. No further requirement exists for reproduction or anything else. Since you heterosexuals have defined marriage down to near-irrelevance, it’s a little hard to justify keeping it away from gays.

                    19. The definition already has changed:
                      mar?riage
                      ? ?/?m?r?d?/ Show Spelled[mar-ij] Show IPA
                      ?noun
                      1.
                      a.
                      the social institution under which a man and woman establish their decision to live as husband and wife by legal commitments, religious ceremonies, etc.
                      b.
                      a similar institution involving partners of the same gender: gay marriage.
                      2.
                      the state, condition, or relationship of being married; wedlock: a happy marriage.
                      3.
                      the legal or religious ceremony that formalizes the decision of two people to live as a married couple, including the accompanying social festivities: to officiate at a marriage.
                      4.
                      a relationship in which two people have pledged themselves to each other in the manner of a husband and wife, without legal sanction: trial marriage.
                      5.
                      any close or intimate association or union: the marriage of words and music in a hit song.
                      6.
                      a formal agreement between two companies or enterprises to combine operations, resources, etc., for mutual benefit; merger.
                      7.
                      a blending or matching of different elements or components: The new lipstick is a beautiful marriage of fragrance and texture.
                      8.
                      Cards . a meld of the king and queen of a suit, as in pinochle. Compare royal marriage.
                      9.
                      a piece of antique furniture assembled from components of two or more authentic pieces.
                      10.
                      Obsolete . the formal declaration or contract by which act a man and a woman join in wedlock.
                      Use marriage in a Sentence
                      See images of marriage
                      Search marriage on the Web
                      Origin:
                      1250?1300; Middle English mariage < Old French, equivalent to mari ( er ) to marry1 + -age -age

                      ?Related forms
                      non?mar?riage, noun
                      post?mar?riage, noun, adjective
                      pre?mar?riage, noun
                      pro?mar?riage, adjective
                      re?mar?riage, noun

                      ?Can be confused: ?marriage, wedding (see synonym note at the current entry ).

                      ?Synonyms
                      3. matrimony. Marriage, wedding, nuptials are terms for the ceremony uniting couples in wedlock. Marriage is the simple and usual term, without implications as to circumstances and without emotional connotations: to announce the marriage of a daughter. Wedding has rather strong emotional, even sentimental, connotations, and suggests the accompanying festivities, whether elaborate or simple: a beautiful wedding; a reception after the wedding. Nuptials is a formal and lofty word applied to the ceremony and attendant social events; it does not have emotional connotations but strongly implies surroundings characteristic of wealth, rank, pomp, and grandeur: royal nuptials. It appears frequently on newspaper society pages chiefly as a result of the attempt to avoid continual repetition of marriage and wedding. 5. alliance, confederation; weld, junction.

                      ?Antonyms
                      1. divorce.

                      Explore the Visual Thesaurus ?
                      Related Words for : marriage
                      matrimony, spousal relationship, union, wedlock, man and wife
                      View more related words ?

                      Fast Uncontested Divorces
                      Need to get divorced ASAP? Call today and we’ll start today
                      http://www.kellybramwell.com
                      Talk To A Lawyer Now
                      Fill Out Our Form – Free Family Lawyers Respond Fast
                      http://www.legalmatch.com
                      -age
                      ?
                      a suffix typically forming mass or abstract nouns from various parts of speech, occurring originally in loanwords from french ( voyage; courage ) and productive in English with the meanings “aggregate” ( coinage; peerage; trackage ), “process” ( coverage; breakage ), “the outcome of” as either “the fact of” or “the physical effect or remains of” ( seepage; wreckage; spoilage ), “place of living or business” ( parsonage; brokerage ), “social standing or relationship” ( bondage; marriage; patronage ), and “quantity, measure, or charge” ( footage; shortage; tonnage; towage ).
                      Origin:
                      Middle English < Old French < Latin -?ticum, neuter of -?ticus adj. suffix; an extension of Latin -?ta -ate1 , whose range of senses it reflects closely
                      Dictionary.com Unabridged
                      Based on the Random House Dictionary, ? Random House, Inc. 2011.
                      Cite This Source
                      |
                      Link To marriage
                      World English Dictionary
                      marriage (?m?r?d?) [Click for IPA pronunciation guide]

                      ? n
                      1. the state or relationship of being husband and wife
                      2. a. the legal union or contract made by a man and woman to live as husband and wife
                      b. ( as modifier ): marriage licence ; marriage certificate
                      3. the religious or legal ceremony formalizing this union; wedding
                      4. a close or intimate union, relationship, etc: a marriage of ideas
                      5. (in certain card games, such as bezique, pinochle) the king and queen of the same suit

                      Related: conjugal , marital , nuptial

                      [C13: from Old French; see marry 1 , -age ]

                      Collins English Dictionary – Complete & Unabridged 10th Edition
                      2009 ? William Collins Sons & Co. Ltd. 1979, 1986 ? HarperCollins
                      Publishers 1998, 2000, 2003, 2005, 2006, 2007, 2009
                      Cite This Source

                      Words change over time. Read something in English from hundreds of years back and parts will be difficult to understand because some words are used differently now than they were used then. As another poster pointed out, the definition of mouse has expanded to include a computer controller. Why are you so opposed the definition of marriage expanding? I suspect that your claims that you are not emotionally invested in the argument are disingenuous.

                    20. “The definition already has changed:”

                      The definition that matters is what the word communicates.
                      If I say “I am married” the overwhelming majority of people instantly know that I am a husband with a wife. I see no good reason why that needs to change. Making some homosexuals feel included is not what I consider to be a good reason, because I couldn’t give a fuck less about their feelings.

                      I also think it is a travesty that committed homosexual couples don’t have hospital visitation rights, can’t put each other on health insurance, etc. That is an injustice.

                      I care about injustice.

                      Fairness? Thppt.

                    21. Making some homosexuals feel included is not what I consider to be a good reason, because I couldn’t give a fuck less about their feelings.

                      Yet you feel it perfectly OK to impose your feelings on them–to the extent of denying them equality under the law. Because you don’t want to be confused. How about we don’t give a fuck about your irrational hangups and precious incredulity?

                    22. “Yet you feel it perfectly OK to impose your feelings on them”

                      I am not imposing a damn thing. You are the one trying to make the imposition by attempting to change the definition of marriage.

                      Not only are you dishonest, but you’re damn stupid as well.

                    23. You do realize you’re talking like a right-wing Christian with this “definition of marriage” crap? In fact, the only arguments against full marriage rights are sectarian, hence invidious. Your gender hangups are your problem. Adults can learn to deal with a new reality. That’s not as much of an imposition on people as denying them the right to marry.

                    24. sarcasmic, stop making Tony look like he has a shred of intelligence.

                    25. Making some homosexuals feel included is not what I consider to be a good reason

                      I don’t really give a flying flip about “feeling included.”

                      I do have a serious problem with your (and other “marriage advocates'”) bad habit of reaching deep into my wallet and simultaneously arguing that I have an “obligation” to pay higher taxes for higher benefits for “married” people while also arguing that my unwillingness to do this without also being included is “unpatriotic” and “redefining marriage.”

                      I guess I missed that part of “Da Bahhhhbull” that defined marriage as “the sacred obligation by homosexuals and other legally single people to subsidize the consumption, retirements, educations, and housing of heterosexual couples who register their sexual relationships with the local bureau of records.”

                    26. Easy. Equivalent institutions or contracts with different names and equal legal standing.

                      AWESOME idea!

                      Since you’re advocating redefining citizenship, let’s start with your citizenship.

                      We shall revoke your US citizenship and replace it with “US servant” status.

                      Now, a US servant is equivalent to US citizen in all rights and responsibilities, except that we cannot destroy the classic and unchanging definition of “citizen” by including those who believe that the Constitution’s 14th and 10th amendments should be destroyed.

                      So you are now no longer a US citizen, since you undermine its values, but a US servant — separate but equal. Any complaint by you as to this status is clearly an effort to socially engineer society and force people to recognize your anti-constitution self as a “citizen,” in direct contravention of the ancient definitions of citizenship.

                      Have a great day, servant!

            2. “marriage being a husband and a wife. A husband is male and a wife is female.”

              Stating your opinion in no way obligates anyone else to aide by it.

              1. I have a quiry: Why the devil have you engaged in a 37-comment-long argument over semantics?

      2. What does the desire for a ‘formal marriage contract’ have to do with anything? The fact alone that government offers special privileges to people who enter into the contract of marriage is proof that it is social engineering. It is no different than a Church telling parishioners that they can have sex and cohabitate without fear of retribution from God.

        1. You miss my point, I agree the government has and will continue to social engineer society for its benefit but the fact that gays want marriage is not for the tax breaks, or the piece of paper.

          We forget that the fact that people participate willingly in this arrangement means that it is mutually beneficial to all.

        2. “The fact alone that government offers special privileges to people who enter into the contract of marriage is proof that it is social engineering.”

          So?

    2. Good points, Mr Whipple. I’d add: if people glom onto “state sanctioned marriage” basically because they’re too lazy/illiterate/whatever to develop their own “mutual, private contract” then they can use any of 10,000 marriage contract templates — e.g.

      (What happened to all the trademarking? Is it really *you*?)

      1. Yes its me. I’m on my mobile

        1. Yes its me. I’m on in my mobile home

      2. Awesome link. Do you have a mutual private contract template that will grant a green card to my same-sex foreign non-US citizen partner and claim him as a dependent on my form 1040?

  5. But if Texas is entitled to decide who among its people gets all the benefits of marriage, New Hampshire should have the same right. Right now, it doesn’t.

    States have no “rights”, only individuals have rights.

    1. Okay, if you’re gonna play semantics, states really have “powers”.

  6. In practice, that means married homosexuals lack all sorts of privileges extended to married heterosexuals. They may not file their federal taxes jointly, claim various tax breaks, collect Social Security survivor benefits if their partners die, or take advantage of spousal benefits granted to military personnel and veterans.

    The government provides benefits, not “privileges”. At least he didn’t call them “rights”. I think that it is immoral for the government to give benefits based upon personal relationships. The reason that they are immoral is because the government doesn’t have its own money. Any privilege comes at the expense of someone else.

    In any debate about government provided privileges the only wronged party, ever, is the taxpayer. The name of the teat to which the parasite attaches: marriage, welfare, subsidy, public service, regulatory capture, ect does not change its basic immorality. Why all the tears for those who don’t get to steal based upon their personal relationships and none for those from whom they would steal? If it is wrong for the government to deny these benefits to homosexuals, why no love for single people, gay or straight? Aren’t they being denied the same privileges?

    1. why no love for single people, gay or straight? Aren’t they being denied the same privileges?

      I have a solution. So, marriage is an activity, right? So, not being married is a non-activity….which means it affects interstate commerce….ta-da.

    2. The Framers of the Constitution used the terms rights and privileges nearly interchangeably. Take a look at Justice Thomas’s excellent concurrence in McDonald v. Chicago.

      As with many words, our understanding of the meaning of the word “privilege” is is subtly different from the understanding of 200 years ago. My impression is that those you continue to use the term in this context are hearkening back to that older, traditional understanding.

  7. re: Texas denying gay couples from other states their marriage status. Whatever happened to the full faith and credit clause? If a given state can arbitrarily decide not to recognize a marriage from another state, how does that not violate the Constitution?

    Once upon a time, there were many states who effectively outlawed divorce. But that didn’t stop people from going to Reno for a few weeks, getting divorced, then moving on with their lives. Their home state never said “Sorry, we don’t recognize that divorce, you’re still married to your dipshit ex.”

    1. The issue with using the FFC Clause is that you still have to respect state sovereignty. SCOTUS has issued decisions analyzing the FFC Clause and has concluded that you can’t just force a state to recognize every single decision or benefit granted to someone by another state, if doing so would violate the public policy of the second state. Just because State A allows teenage cousins to get married doesn’t mean that State B has to allow it.

  8. Then put the DOMA into an Amendment.
    Make it part of the Constitution.
    There. No more argument over its constitutionality.

  9. Agreeing with the thought started by CaptainSmartass, this has always been an Article Four issue for me. While some justify ignoring the “Full Faith” clause with the public policy exception, you actually need to have a compelling policy interest(Consanguinity, bigamy etc.)to not recognize a marriage. “We don’t like the homos” is not an actual policy, so you can’t make a case for the exception, Federalism or not. That DOMA had, in my opinion, granted an unconstitutional power to the states was nearly as odious as the double standard they enshrined in the law.

    1. “We don’t like homos” works quite well for me, thank you.

    2. How is “we don’t like homos” any more or less valid than “bigamy”? Unless you’re referring specifically to fraud, and not just the fact of multiple partners.

      If anything, historically speaking, polygamous marriage makes more sense — marriage was an institution tied to family, establishing lineage, and all sort of other things under the heading of Makin Babies. One Guy + n Women fits, same sex relationships don’t. Even when same sex relationships were more accepted, I don’t think they usually resulted in marriage, though I could be wrong.

  10. I think the real issue here is not ‘Gay Marriage’, but the behavior of the Politically Gay. Why? Because the polls that I’ve seen (do tell me if it’s changed recently) indicate that while a majority oppose ‘Gay Marriage’, a similar (though presumably not identical in terms of individuals) majority approve legally identical ‘Civil Unions’. This makes me believe that the opposition to ‘Gay Marriage’ is based on a visceral ‘they aren’t just like us, damnit’ reaction. And my belief is that that is a majority reaction because of the way the Politically Gay play Shock the Squares.

    Now, I’m not saying that this is right or just. But I am pointing it out as an object lesson in the costs of not ‘getting along with the neighbors’. If your PR makes people believe that you are a bunch of tacky idiots with poor impulse control (and how else do you describe a fool who wears outre bondage gear on the public street?), then they are disinclined to accept you as ‘just like us’.

    Personally, I favor recognizing Gay Marriages; I think that whatever proportion of Gays wish to live monogamously should be legally protected from those that don’t, but lie about it. I don’t find the argument that the next step is polygamy persuasive. Polygamy will never be a common social construct (regardless of legality) in a society with divorce laws like ours.

    I guess my proposed solution would be to ‘divorce’ civil marriage from religious marriage, as has been done in some South American countries.

    1. The guy in bondage gear in the street is no more representative of all gay people than Snooki is of all straight people.

      1. I agree, up to a point. However, Gay Pride events do tend to bring them out in bulk, and they don’t tend to get told by the organizers “Put a shirt on over those pierced nipples, or go home”. Every minority group trying to claw its way up (that I know of) has had to decide what image it wanted to leave in the minds of the public. And when they haven’t thought that through well, they have had problems. It may not be right (I would tend to agree that it wasn’t), but it IS true, and probably always will be.

        The idiot who wears his hand-made Star Trek uniform on the street isn’t typical of SF fans either, but SF fans usually try to keep him ‘within the lodge’, so to speak. And for the most part they aren’t trying to get political concessions.

        It may not be FAIR, but pictures of the loonie toons from San Fran and similar places poinson the well.

        Which doesn’t change whose side I’m on.

        BTW; a thought about Marriage vs. ‘civil unions’: Even if tomorrow we woke up and every State in the Union had passed legislation recognizing Gay Marriage, Gays would still be facing at least a decade of lawsuits to make random sphincters follow those laws. Again, it ain’t Fair, and what has THAT got to do with reality. Change Marriage to “Civil Unions” and I expect that time at least doubles.

        That’s MY opinion, anyway.

        1. If people think of gays and can only envision leather daddies whipping their junk out on parade routes, then they suffer from a severe lack of perspective. Nobody condemns straights for their Mardi Gras shenanigans. That said, I won’t pretend that gays always put forward a wholesome image. That’s why it’s so much fun being gay.

          1. Tony, you’re either obtuse or totally ducking my point. When the Irish were fighting to be treated equally (Think that didn’t happen? You need to read more history.) they worked HARD to keep the stereotypical Irish Drunks AWAY from the St. Patrick’s Day Parade. They needed to. It wasn’t fair and it wasn’t nice, but it still had to be.

            It isn’t fair and it isn’t nice that Gays have acquired a reputation for being S&M jerks, but the reputable Gay writers who have written about “Transgressive Sex” being a “Revolutionary Act” have something to do with it. It isn’t JUST prejudice. It was to some degree fostered from within the Political Gay Movement (or some of the Movements, anyway)

            NOW, Gay people need to combat that stereotype. Or, if they don’t, making social progress will be harder. Not fair, no. But real. It comes down to, would you rather huffily retreat to your Moral High Ground, or do you want to achieve some of their goals?

            1. reputable Gay writers who have written about “Transgressive Sex” being a “Revolutionary Act” have something to do with it

              You might as well bring up the writings of Malcolm X and blame them for “being responsible for contemporary racism.”

              Those articles you’re citing are from the 1970s. Someone born when those articles were written is in the middle of the second decade of his adult career.

            2. Well the only people we have to convince are judges. The yokels will just have to die off, which is how acceptance usually works.

              1. Charming attitude, Tony. You really don’t want to be broadly accepted, do you?

                Keep in mind, the People are the sovereign. If they don’t like what the Judges decide, there are a LOT of ways they can make life difficult.

                Keeping in mind that I think they’re wrong, still, do you really want to deal with that?

                1. Touche’, C.S.P. Schofield

                2. Public opinion is trending inexorably toward acceptance of gay equality. The only thing holding it back is the influence of religious conservatism. Even the Republicans are finding it increasingly difficult to use gays as a bogeyman for vote mining.

                  I want to be accepted legally. We’re already accepted socially by anyone whose opinion on the subject matters. Unlike other minority groups, we’ve been in positions of power and influence for a very long time (whether it was known or not). I’m not concerned, really.

                3. the People are the sovereign. If they don’t like what the Judges decide, there are a LOT of ways they can make life difficult.

                  Quite true. So accept the tax hike with a smile to keep social security payments flowing, and happily pay double property tax to ensure that the public unions get generous benefits and pensions.

                  The People have spoken!

  11. I mentioned this in another thread, but marriage wasn’t even a sacrament in Christianity until the Fourth Lateran Council in 1215. Prior to that, many marriages were kids having sex and telling everyone they were married.

    Since even the church used to tolerate marriage as something between individuals, one would think the state could survive treating it as a contract and not having such a deep role in the process.

  12. One of the most important issues of our time!

    1. After high speed rail!

      1. If only the issues could be combined!

        1. See below.

  13. Speaking of high speed rail, I propose, as a compromise, that we only allow gay marriage on high speed rail. Therefore, we need more high speed rail to allow the equality of marriage to apply to gay people.

    Build some tracks, bitches!

  14. Clearly, it’s only a matter of time before the administration supports mandatory gay marriages for Florida seniors. I’m pretty sure the lack of fabulous wedding parties is an interstate commerce issue.

  15. this from the same joker who says Obamacare is Constitutional….surreal…

    Socialcons have put their issues on the back burner to focus on the economy while the Obama and the liberalcons keep on “jamming”…if you are not familiar with that term read the gay version of Rules for Radicals “After the Ball…”

    http://www.amazon.com/After-Ba…..0452264987

  16. You know, I think DOMA should be repealed, but I have a beef with this article. The Fourteenth Amendment has changed the concept of federalism. Since the federal government has bestowed certain “privileges” on married couples (as do most states), all states IMHO have to recognize marriages from other states. Also since marriage is a contract, and states are bound to recognize valid contracts written elsewhere, IMHO marriages have to be recognized by all states regardless of origin.

    Also I think that this is not really about equal protection of the law. Everyone has the same right whether homosexual couples can marry or not. I see it as an issue of religious freedom. Some believe that marriage is “a man and a wife,” while others are open to homosexual marriage. I think it’s wrong for the federal government to make that decision, though I think it would be OK for states to outlaw secular gay marriages within their jurisdiction.

  17. “if Texas is entitled to decide who among its people gets all the benefits of marriage, New Hampshire should have the same right. Right now, it doesn’t.”

    I’m all for gay marriage, but if you removed DOMA, then technically the people of Texas would not have “all the benefits of marriage”: they’d partly lose the benefit of lower taxes. See, if gay couples in New Hampshire can file jointly, then they pay less taxes, which means everyone else has to pay more. The real solution is to do away with the federal tax code and forget about unions entirely.

    1. I’m all for gay marriage, but if you removed DOMA, then technically the people of Texas would not have “all the benefits of marriage”: they’d partly lose the benefit of lower taxes.

      Those Texans were also, for years, collecting oodles of benefits from the higher taxes others were paying. So, of course, the flip side question is — when will all those Texans who collected spousal Social Security benefits, lower personal income taxes with dependent credits, etc. be refunding the homosexual couples who were overtaxed to pay for all those freebies for decades?

  18. Once again, many posters pale in the shadow of Tony’s superior intellect!

  19. Someone should send this article to Ron Paul, the fake defender of federalism, who wants federal law to trump the states in marriage because his religion requires him to treat gay couples as legally inferior. Good for Chapma, shame on Ron Paul. But then Paul was always a conservative, never a libertarian except when it came to rhetoric when fund raising.

    1. You are correct, sir!

    2. Is it really his personal religious views driving his virulently anti-gay position, or just brazen political grandstanding (especially in Iowa)?

      Perhaps he’s still reeling from being punk’d by Br?no?

      Either way, he’s practically indistinguishable from Huckabee at this point.

  20. This article is half right, and half full of bullshit. Any true libertarian would take the FFCC as it is written, which *clearly* demands that contracts (and marriages are *clearly* contracts) be honored among all fifty states.

    Libertarians should argue federalism for the sake of federalism. “States’ rights” is not a god. Sometimes, yes, the constitution supercedes. It clearly does in this case.

  21. That is, shouldn’t argue federalism for the sake of federalism. States can’t do whatever they want.

  22. But the law is not entirely hostile to federalism. It expressly upholds it, in fact, when it says no state has to recognize a same-sex marriage from another state.

    How in the hell can giving states a loophole in the Full Faith and Credit clause — for this and only this particular contract — be construed as supporting Federalism? Sounds more like cafeteria libertarianism.

    1. “Sounds more like cafeteria libertarianism.”

      Rice pudding cafeteria libertarianism. Well-said.

      1. There is no “public policy” exception written in the constition.

        I seriously doubt Steve Chapman would have written this article defending states not recognizing interracial marriages from other states.

        1. True. The same with “recognizing states’ rights to ignore the Constitution” in other areas outside of the 10th and 14th amendments — guns, speech, and tax policy for example.

  23. The argument about “gay marriage” reminds me of the old joke: When did you stop beating your wife? In other words, the argument assumes something has been agreed upon and here is a question about it. Who has determined that the government should “officialize” a relationship? The very act of a government making marriage an act that has to be approved by government leads to the problem we are discussing. Were it not for that there would be no problem at all. Without going into the reasons usually given as to why marriages have to be sanction by government, officially sanctioning marriages will by definition lead to discrimination against someone. Who can and who can not get married is determined largely by religious and cultural beliefs and not by any practical necessity that cannot be more easily resolved. Listen to gay marriage advocates argue against polygamist. The arguments they make are almost identical to the arguments made against “gay marriage”. Let people form whatever relationship they want on their own private term without any government interference or need for approval. The privileges given to married people are similar to the privileges given to counts and dukes in the past. It is noteworthy that are Constitution specifically prohibits the issuing of titles of nobility. And yet we get around that very good idea by renaming the “titles”.

  24. Whoa…since when did you guys start doing game commentary?

  25. So many times when I watch the news, read the paper or surf the net I am bombarded with an endless debate on the validity of State sanctioned “homosexual” marriage. Men and women on both sides of the debate angrily defend their side of its validity. They march with signs in public, lash out in editorials and even get violent in defense of their rationale.
    I think it only fair to mention that I am a Christian. Just so you know where “my” morality lies on this issue. This is also to show the lack of relevance my religious view has (or should have) in this trumped up argument.
    It’s constitutional, it’s not constitutional. This really gets to me. Let’s look at the Declaration of Independence for a second and switch the debate to a much more important track.
    We hold these truths to be self-evident, 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.
    Who is it the pro-homosexual crowd and the anti-homosexual crowd both want to intervene here? It’s the State and Federal governments. I question the government’s privilege to intervene on either side and I charge a usurpation of my right either way.
    We all have our eyes on the all mighty “marriage license”. Are you kidding me! Religious crowd you really have dropped the ball here. Webster’s dictionary defines license as “formal permission; official permit; freedom of action”. So that being stated who the hell gave the governments any business making marriage valid or invalid. If you need a license to do a thing then it stands to reason that doing that thing without a license is illegal. If my wife and I agreed to marry and do so without a license somehow it is less valid than it is for someone who got their State sanctioned license to marry. Sorry, but you suppose that God’s blessing is not enough by itself. Well if that’s the case why stop there; why not granting a baby-making license that could really generate revenue couldn’t it. How about a religious denomination affiliation license/tax? Want to be Christian, Jew, Muslim, Hindu, Buddhist, etc…, just pay your ten dollar tax and the State will issue you your own “Religious Denominational Affiliation License”. Yes I realize this is going overboard and conflicts with the first amendment but being that marriage is a religious institution in itself, what’s the difference? If you need a license to enter into it doesn’t that conflict with the first amendment to begin with?
    Amendment 1…. “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.”
    Once again marriage is a religious institution and the government has a mandate to refrain from any constraints or expansions of it!
    Why is it that when we have a conflict of opinions now days it has become a reflex to have big brother government step in to settle it? I for one would like to see, in nearly every instance, the government step further back from any issue at hand. If they were out of the marriage taxing business altogether, then who someone choses to marry becomes (as it should be) a morality issue.
    As a Christian I would no more force my belief of who you chose to spend your life with than I would force my belief of who you chose to worship or not to worship. As long as it doesn’t infringe on my (or anyone else’s) human right you are free to pursue you happiness anyway you see fit. I can also openly disagree with your choice and with government completely out of the picture (other than protecting my right to voice my views) it becomes no more than opinion.
    The Declaration of Independence tells me that we all come into this world with the exact same and amount of human right. Though our stations may ebb and flow your human right is no more or less than my human right. If you and anyone else team up, that doesn’t grant you a larger share of human right than I have alone. Think about it; a whole thing is only equal to the sum of its parts. Fifty thousand people teaming together still have no more God given right than I do alone.
    Has it not been declared that my right is certain and unalienable; meaning definite and unable to be taken or even given away, and too, as the Declaration of Independence states: “That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” So by our very founding document it is clear what the only purpose of forming a government is for (protecting our individual right).
    Fifty thousand people banning together to force me to stop speaking my mind is usurpation plain and clear. Furthermore by my religion; if God grants me free will to pursue my own happiness, who do you suppose to be, to take that away from me? I may choose to turn away from God and He allows that to me. But you would force me to turn back? My how arrogant are you? Maybe you should refrain from force upon me, as long as I haven’t usurped your right and allow me and anyone else to answer for their actions, when all of our times come in the hereafter.

Please to post comments

Comments are closed.