State Power

States' Rights Aren't the Enemy in Gay Marriage Battle

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President Barack Obama came out Wednesday not only as a supporter of gay marriage, but also as a Tenther!

"Anybody who doubts my sincerity in the belief of restricted federal authority will answer to my drones."

No, not really. He did say that he believes individual states have the right to set their own policies on recognizing gay marriages. His sudden acknowledgment of states' rights certainly comes as a surprise to anybody who has been following his administration's abominable behavior with regard to legalized medical marijuana. Cynicism is perhaps the appropriate response from any libertarian.

But I'm much more fascinated by the response of the generally progressive gay and lesbian community to any invocation of states' rights. Even though pretty much every gain in recognition of gay marriage has taken place on the state level, the Tenth Amendment is still frequently seen on the left as an excuse for cranky right-wing secessionists to try to force schools to teach creationism. Advice columnist Dan Savage declared Obama's transition on gay marriage not quite complete because of his deference to the states on actual policies.

In 2010, Judge Joseph Tauro of the federal District Court of Massachusetts ruled in Massachusetts vs. U.S. Dept. of Health and Human Services that the federal Defense of Marriage Act was an unconstitutional violation of the Tenth Amendment (decision here [pdf]). In response, Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale, warned: "As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power." (This is the part where libertarians yell, "That's a feature, not a bug!")

Balkin believes Tauro's decision can't possibly stand, and he may ultimately be right, given the general deference to federal authority that has become the hallmark of the Supreme Court.

But you win zero percent of the fights you don't have. States' rights have been vital in allowing gay marriage victories, not just losses. The federal Defense of Marriage Act was signed into law under President Bill Clinton in 1996, forbidding the federal government from recognizing same sex marriages. Yet, since the law's passage, six states and the District of Columbia have gone on to allow for legal recognition of gay marriages anyway (and two others may join them this year). Regardless of federal law, states are carving out their own language of what constitutes a marriage (or civil union, or domestic partnership), and this has resulted in more recognition for gays, not less.

Yes, the states' rights movement does have a bit of a reputation, doesn't it?

Fighting on the state level for gay marriage recognition is mandatory because of how slow and conservative (in temperament, not necessarily political philosophy) the federal government often is. By the time the Supreme Court actually struck down anti-miscegenation laws in 1967, they had already been repealed in all but 17 states. Many states had already struck down sodomy laws by the time the Supreme Court ruled them unconstitutional in 2003. Even though four out of five Americans had decided by 2010 that prohibiting gays from serving openly in the military was stupid, it took a tremendous amount of political maneuvering to actually end the Don't Ask, Don't Tell policy, and some Republican presidential candidates swore they would bring it back if elected in 2012. Federal government is slow. Federal government doesn't lead, no matter how much progressives wish it would. It follows the flow of the public, and so Obama's "evolution" is not particularly unusual any more than it is for the rest of America to be slowly coming around in support as well.

The fear of embracing the Tenth Amendment resides in the acknowledgment that if a state has the authority to recognize gay marriage, then it also has the authority to deny it. And thus gay marriage is an equality issue, a Fifth Amendment and Fourteenth Amendment issue. It's not about states' rights. While ultimately true (just at it was ultimately true with interracial marriage bans), the actions on the state level help inform and sharpen the debate before the federal government. Anti-miscegenation came before the Supreme Court first in 1883 and the laws were upheld. Most states had these laws, but they started falling after World War II. The states led the way to the Supreme Court decision. No, the Tenth Amendment was not invoked, but it's hard to imagine the justices pondering the interracial marriage question if so many states hadn't already answered the question for them.

Consider the arguments that will likely be used to defend California's Proposition 8 or the Defense of Marriage Act before the Supreme Court. How many of those arguments regarding the "compelling state interest" in denying marriage recognition to gays and lesbians can be countered by virtue of the gains made on the state level in the past five years? How much harder would it be to attempt to argue for the federal recognition of gay marriage if no state had taken the plunge yet?

The gay and lesbian community should not fear states' rights or the Tenth Amendment. History has shown that these smaller political battles are the building bricks that will lead to the national consensus, and thus the desirable federal outcome.

As for the libertarian position of getting the government out of the marriage business entirely, well, if that argument is ever going to lead to political action and not just boilerplate disclaimers, these gay marriage battles are a precursor. It would be foolish to believe that the federal government would ever take the lead in giving up its own authority to formally recognize marriages. The battle will start with one state and grow from there.

NEXT: George Soros: Only My Interests Are Public

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  1. So…Obama want’s to bring back slavery?

    1. If only I could enslave you in punctuation prison.

      1. Sorry: I didn;t quite catch that…could you repeat it?

    2. If only I could enslave you in punctuation prison.

      1. If only I could enslave you in double-post prison (with a dozen horny squirrels).

  2. So if Obama thinks that states should decide the question about homosexual marriages does he plan to fight the federal courts striking down California’s constitutional amendment about marriage?

  3. If people like Andrew Sullivan didn’t get weepy when “my president ackowledged my lifestyle”, this wouldn’t even be a discussion.

    We (the royal we) keep placing more and more of our health and well-being in the lap of the state, and then can’t function in our daily lives without an “affirmation of our lifestyle”.

    Jesus, Pro L was right, libertarians have been saying, “do what you want” for decades, but now a procolomation from The President makes it so.

    There’s got to be somethingin the DSM IV that covers this desire to have the government in control of everything, then go back to it crying for love, recognition and approval…

    1. “There’s got to be somethingin the DSM IV that covers this desire to have the government in control of everything, then go back to it crying for love, recognition and approval…”

      Be mighty queer if it didn’t.

    2. “He likes us! He really likes us!”

  4. I actually do see an argument in favor of some national basic standard for civil unions.
    For example a same sex couple whose union is recognized in their home state goes on a road trip. As they’re driving through a state that does not recognize their union they get into an accident that puts them in the hospital.
    What’s going to happen?

    1. What’s going to happen?

      Umm, they get treated and released?

      Trust me, even in West Texas, we got rid of our “no-gays” admissions policy decades ago, and we closed our “gays-only” ward sometime in the ’90s.

      1. As far as their being free to visit each other like a married couple..?

        1. The visitation thing is a canard. I’ll bet that I’ve spend more time in hospitals than 85% of everyone here and I can tell you, that after 1983, I have never once been asked about my relationship to the patient when visiting.

          In addition, the relationship to the patient has always been an honor system thing anyway.

          During my brief, whirlwind marrige I didn’t even share the same last name as my wife and the addresses on our licenses were different. If I’d have walked into the hospital to visit her in the ICU, and someone would have and demanded proof that I was related, I couldn’t have provided it.

          I don’t share the last name of my syster, nor address, yet I’m “next of kin”.

          Proof of relationship is functionally impossible for any hospital to prove, and except for some rural hospital in the sticks I’ve never heard of, no one, but no one asks for relationship to the patient for visitation rights.

          1. What about medical decisions?

            1. Medical decisions can be trickier, but there’s a thing called “power of attorney” which can be arranged. Yes, I know that there’s a kind of automatic kick-in when you’re married which makes things easier.

              Fun fact, when my mother was dying a year ago, there were all manner of decisions being made left and right and not once were my sister and I asked to show proof of our relationship to our mother.

              Admittedly, none of these involved life support situations or rescusitation which are the only areas I can imagine you’d run into sticky areas.

              If I were getting gay married, I would certainly set up a power of attorney agreement just to be safe.

        2. Further, hospitals just aren’t the same as they were even 25 years ago. The ‘family’ provision in patient visitation policies was a way to physically limit the number of people visiting a patient. Surely patient x won’t have 200 family members, but he might have 200 friends. It was merely a control issue.

          Most hospitals did away with visiting hours back in the 90s.

          Most modern hospitals see the patient’s support system as extending beyhond his or her immediate family.

          1. Paul pretty much gets it right.

            As to medical decision-making, it varies by state. Typically, though, your medical power of attorney holder trumps everybody else.

            If you don’t have one, the list generally starts with your spouse (if any), and runs through your relatives, generally in some kind of rank order. That can lead to ugliness, regardless of your degree of gaiety.

            And no, we don’t ask people to prove they are related to the patient, with the exception of “common-law” spouses, who almost never really are.

      2. Who gets to make medical decisions if one is in a coma? In the hypothetical home state, where civil unions are legal, it’s the partner. In the state where it’s not legal, they have to find some other family member, since the civil union is not recognized.

        1. Question for the legal eagles here. My sister and brother-in-law are in an accident. Brother-in-law dies, leaving me the only living blood relation. Am I able to make medical decisions based upon my next-of-kind status, or am I out of that process because there’s no formal power-of-attorney between us?

          1. You should be OK based on your next of kin status. It varies by state, but that should get you in the door.

            We hospitals are desperate for a decision-maker; we’re happy to find one, and don’t inquire into it unless there is some kind of dispute with another family member or some other red flag goes up.

    2. For example a same sex couple whose union is recognized in their home state goes on a road trip. As they’re driving through a state that does not recognize their union they get into an accident that puts them in the hospital.
      What’s going to happen?

      What’s going to happen with what?

      1. See above.

    3. They get treated by doctors and hopefully recover. If what you mean is what happens if one of them can’t make decisions and the other needs to give permission for medical procedures then

      If they rely on government then they will end up with whatever government decides

      If however they rely on themselves and get a legal contract to give each other the power to decide medical treatments if one is incompacitated then they decide

      1. Wouldn’t they need a different contract for every state through which they plan to travel?

        1. Why, its the same two people. I am not a lawyer but I don’t think that you need different contracts.

          1. It’s an honest question. I’m not a lawyer either.

        2. No. Every state recognizes advance medical directives.

          1. Typically, states will recognize medical directives or powers of attorney from other states.

      2. If however they rely on themselves and get a legal contract to give each other the power to decide medical treatments if one is incompacitated then they decide

        You are aware that that a civil marriage license is a standard contract the innumerates exactly this?

        1. Yes but in the case of a marriage contract the government decides what provisions it includes and they can and have changed it when they decide without asking the married people involved.

          So you can throw yourself on mercy of government or get your own lawyer and write a contract which both parties agrees too.

          1. Which many couples do with prenuptial agreements. However, most people are perfectly fine with just getting the bog standard contract, I don’t see why we should prevent people from doing that or allow states to not recognize bog contracts from other states (which they don’t with the exception of marriage contracts).

  5. While I think states should be able to allow whatever marriages to occur within their state borders, they should be required to recognize the benefits of marriages conducted in other states due to the full faith and credit clause.

    1. For reasons that are not clear to me, some licenses cross state lines (driver’s licenses) and some don’t (CCW licenses, professional licenses).

  6. “The gay and lesbian community should not fear states’ rights or the Tenth Amendment. History has shown that these smaller political battles are the building bricks that will lead to the national consensus, and thus the desirable federal outcome.”

    So you’re not arguing for the 10th Amendment after all, simply for using a state strategy until you can bring the great Supreme Court case to legalize SSM throughout the country?

  7. What’s going to happen?

    Umm, they get treated and released?

    Trust me, even in West Texas, we got rid of our “no-gays” admissions policy decades ago, and we closed our “gays-only” ward sometime in the ’90s.

  8. Do states set policy on spousal benefits for the United States Armed Forces?

  9. This is the part where libertarians yell, “That’s a feature, not a bug!”

    I absolutely love, love, LOVE how geekspeak has infiltrated common parlance. Programming tends to make more libertarians, or maybe they’re attracted to the field for its rational and unyielding conformation to logic; you will quickly be taught that You Can’t Just Do One Thing.

    1. Yes, but I believe the traditional phrase is “That’s not a bug, that’s a feature.”

    2. Yes, but I believe the traditional phrase is “That’s not a bug, that’s a feature.”

  10. And, hey, I think I may have figured out at least one of the triggers for that weird “one of your words is more than 50 characters”: the presence of Unicode characters in the quoted text (as with left and right double quotation marks, which I substituted in the above quoted text with their ASCII equivalents).

  11. Testing:

    (This is the part where libertarians yell, “That’s a feature, not a bug!”)

  12. Testing again:

    (This is the part where libertarians yell, “That’s a feature, not a bug!”)

  13. (This is the part where libertarians yell, “That’s a feature, not a bug!”)

  14. Yup. Just fired off a working test case to the webmaster.

  15. As I said yesterday, federalism is way overrated by libertarians.

    All levels of government need to protect liberty and provide equal protections, and the fact that one level of government might do it relatively better than another is essentially pointless, as the worst level is still the standard by which we are governed. It’s somewhat important, as we can marginally change certain levels of freedom provided there is another state better than both the Fed gov’t and the state you currently live in.

    But from a libertarian perspective I’d rather just get the federal government to override all state laws that violate individual rights, on the basis of the 14th Amendment, which sequentially overrides the 10th Amendment rights of states to violate individual rights.

    1. Exactly. Yes, federalism is great when it comes to things like education, criminal justice, economic policy, etc. But your civil rights are your civil rights and states can’t violate them any more than the federal government can. The Tenth Amendment is great, but let’s not turn it into some libertarian fetish.

  16. I like how gay marriage has reached top billing in an election year.

    Libertarians care about it because it smells like a libertarian issue, but it’s not. Not a single Red or Blue candidate talks about it because of freedom or the 10th Amendment. It’s a divisive, partisan issue, and that’s the extent of its worth.

    1. Its the diversion-of-the-week, rho. It’ll last until some cute blonde goes missing.

  17. Pet peeve of mine, but:

    State’s don’t have rights; they have powers. Only individuals can have rights.

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