Politically Convenient: Gay Marriage As a State Issue

Yesterday a couple of friends and I were watching The West Wing and on the show there was a brief discussion concerning same-sex marriage. One of the characters, a current senator and presidential candidate played by Alan Alda doesn’t support same-sex marriage protections by the federal government because marriage is a ‘state issue.’ We got into a heated discussion where I attempted to defend Alan Alda’s statements against Kevin’s argument that certainly same-sex marriage was like other civil rights issues and the federal government is in fact constitutionally compelled to intervene, arguing that “if states offer the contract of marriage to opposite-sex couples, they must offer it to same-sex couples.”

My personal morality lies with Kevin’s as I do also believe the feds should intervene, and certainly I’ve yet to hear a valid constitutional defense of DoMA, but what I’ve gotten to thinking about is whether the “marriage is a state issue” is anything more than a political convenience for our politicians. Kevin goes so far as to call those who use it ‘bigots’ in the same sense as those who use purely religious reasons are, though I argued that one could in fact support same-sex marriage at the state level, while believing that the national government should keep its hands out of state business (this would require supporting the repeal of DoMA). One could argue that they are simply creating a compromise between their beliefs as equal rights activists and their beliefs as federalists, but does that make their actions any less bigoted? Thoughts?

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14 Responses to “Politically Convenient: Gay Marriage As a State Issue”

  1. I think we have an issue here where the concept of “marriage” has transcended the religious connotation to become a socially protected/privileged status. It seems to me that marriage should be a religious/personal belief service and social unions should be the only things controlled by the state (as they are the ones that convey the privileged status). What I’m saying here (as a states’ rights/conservative minded person) is:

    1) If any couple (same sex or otherwise) wants to be married that is a purely individual concept (find someone to do the service and it shall be done).

    2) If a couple wants to become socially tied into a committed relationship, eg incorporated in the eyes of the government, the government has the rights to grant those privileges. Fortunately, many state governments are already granting same sex couples similar privileges of opposite sex couples. But as we know different but equal – is not equal.

    In my opinion, the problem with this argument, as I have had trouble describing here is, peoples religious conviction has a say in it. This is obviously because the majority of people who become married do so in a religious ceremony and/or overtone. Separate religion (marriage) from government (privileged status as a social union), in this case, and I think the problem clears up significantly.

  2. Josh Wittner Says:

    I have often felt that for most people in opposition to same-sex marriage the real issue is a semantic one. Is this what you’re saying too? If the government had simply used a different word than ‘marriage’ for its contract then I suspect the opposition would be much smaller, but I’ve got no data to back that idea up.

  3. John Jensen Says:

    I find the argument that we should rename civil marriage to civil unions to be a distraction. For one, it will not happen. For two, it will not matter — many states will attempt to ban civil unions. The semantic difference exists but doesn’t prevent something like Referendum 71 from getting religious support. Another issue is that the Supreme Court has ruled that marriage is a fundamental right of liberty. If the government were to stop recognizing marriages, would that be constitutional? If it were, would there be the same protections on civil unions that the Constitution ensures apply to marriages?

    Civil marriage is a concept that is here to stay. We have to accept that we do want to define civil marriage to encapsulate same-sex couples — because our values have changed and there is nothing wrong with recognizing that. We feel that the government should recognize the love between gay couples just as it does between hetro couples. We do not need to cote the historical, common law definition of marriage to hold that principle.

    The federal government should not say that it is okay for states to not recognize gay marriages from other states — that violates the Full Faith and Credit clause of the Constitution. The federal government should itself recognize any marriage from any state valid. DoMA is a bad law for these reasons.

    Finally, the federal government should not tell states that they are forced to marry homosexual couples. I do not feel that there is a right to marriage between gay couples in the Constitution, and Congress itself has never legislated on marriage licensing. I don’t believe Congress has the power to.

    (Congress has the power to enact civil rights laws under the 14th Amendment, which guaranteed equal protection of the laws to all citizens and allowed Congress to right laws to that effect. However, the 14th Amendment was written in the context of race and not sexual orientation.)

  4. Josh Wittner Says:

    I’ll agree that we’re unlikely to see the renaming of marriage and so it’s of little use besides a rhetorical one for demonstrating bias. I’m fine with moving on from that idea.

    I fully agree with your third paragraph, but the fourth brings up some questions. I haven’t read the evidence, and it wouldn’t much affect my personal opinion, but if it does in fact show that like race sexual orientation is not a choice, then in what way does it not fall under the purview of the ideas behind the civil rights act protecting against discrimination, and therefore extended to protection under the 14th amendment? What if the state decided to not allow marriage based on race? Or based on disability? Are these not protected by the constitution, or by extension the civil rights act? If they are different, in what way?

    I guess what I’d like is an explanation of how gay marriage is not covered by the ‘equal protection under the law’ provision?

  5. John Jensen Says:

    If gays were being heavily discriminated against or were being forced to go to separate schools or restaurants then perhaps there would be a justification for making them a protected class, but the Fourteenth Amendment is construed specifically for protected classes — mostly racial minorities but in some cases women. That is, if a law involves race or sex then it should be subject to strict constitutional scrutiny. There aren’t many laws with regard to governmental discrimination against homosexuals, and discrimination in public spaces is not widespread.

    The Loving v. Virginia decision that made interracial marriage bans unconstitutional came after and outside of the Civil Rights Acts earlier in the 60’s. Congress did not legalize interracial marriage.

    I hate to say it, but marriage has traditionally been between a man and a woman. Same-sex couples do not have a constitutional right to it, and their constitutional rights are probably not infringed by its denial. Equal protection under the law doesn’t mean that the traditional definition of marriage would cease to apply.

    However, one can make an argument that there is no “legitimate state interest” in denying homosexuals marriage rights — a legitimate interest is necessary to create a statue. But so far courts seem to recognize that promoting procreation and family stability is a legitimate justification.

    Congress does not have the ability to legislate on issues like state-issued marriage certificates. It is outside of their power, without some far-fetched rationalization. But even if it were within Congress’ power, we should focus our efforts on getting individual states like Washington to approve gay marriage rather than looking for a broad consensus at the federal level. More liberal states can lead the way on this issue, show that it works effectively, and demand federal and inter-state recognition. I think that’s the better path, but it’s probably also the only one constitutionality affordable.

    What we do not want is a constitutional decision saying that it’s fine to ban gay marriage. We do not want that president.

  6. Josh Wittner Says:

    I’m not sure its the only constitutional path, but it is the clearest and also probably the simplest and definitely the quickest. And that’s why I’m an advocate of that route as opposed to a federal one.

    I’m unconvinced by the courts acceptance that promoting procreation and family stability is a legitimate justification in this case, but only because I don’t believe same-sex marriage somehow decreases procreation or family stability. Maybe I just haven’t seen the clear numbers.

    The problem that I seem to have with the constitutional acceptance of bans on gay-marriage vs bans on interracial marriage, is my understanding of the underlying intent of the 14th Amendment. And if banning interracial marriage violates that right, then I don’t see how banning gay-marriage does not. This doesn’t speak to action by Congress, but it does speak to action by the Supreme Court.

    Wikipedia states that the Civil Rights Act was passed under the Commerce Clause do to the constitutional difficulty of passing it under the Equal Protections Clause. Seems like its not a far stretch to pass either for/against same-sex marriage protections under the same clause. That scares me.

    Again, I agree that the state route is the clearest, simplest, quickest route to attaining equal marital rights for same-sex couples and because of that any other routes are likely a distraction and a waste of vital resources.

  7. Josh Wittner Says:

    Back to my original question though, don’t you think its somewhat bigoted to respond to the question of whether or not you support same-sex marriage with a technical answer about the federal system of government? Or is it the only appropriate answer for a strict federalist who believes that if its not apart of his job voters shouldn’t care about it?

  8. John Jensen Says:

    The 14th Amendment was passed specifically to deal with issues regarding race. We cannot ignore that fundamental intent of the Amendment was racial and apply it to other disadvantaged groups — no matter how different the disadvantage. In this case, any law that has racial components undergoes strict constitutional scrutiny whereas the longstanding meaning of marriage doesn’t need to undergo strict scrutiny.

    The Virginia law banned interracial marriage had no legitimate interest beyond racial discrimination. I think current marriage statues in Washington, for example, have a legitimate interest far different than just discrimination against homosexuals.

    It’s true the Supreme Court believes that marriage is a fundamental human right enshrined in our Constitution — but that would be the historical marriage between a man and a woman. The Court may one day agree that homosexual marriage is a fundamental right, but that’d be long after most states subscribe to that belief, I think.

  9. John Jensen Says:

    “Don’t you think its somewhat bigoted to respond to the question of whether or not you support same-sex marriage with a technical answer about the federal system of government?”

    It’s not bigoted, it’s just not precise. “Would you support same-sex marriage in your state?” would be a good follow-up.

    But the answer “it should be up to the states” is used just as much by the left as by the right, I think. If some progressive Democrat says it should be left up to the states — with the Constitution and long-standing practice backing him up — is he a bigot?

  10. Josh Wittner Says:

    I accept that the historical context of the law should be taken into account when interpreting it, but why then does the 14th Amendment omit any and all qualifications as opposed to naming ‘race’ particularly? I’ll probably have to do research on that question.

    My perspective is becoming that only the answer to your follow up question really speaks to bigoted biases of the person answering the question. The federalist response to the other questions is evasive, but I would fault the reporter or questioner for not asking the relevant question.

    So if it can be shown that legal same-sex marriage doesn’t effect or improves procreation rates and family stability (and any other interests the state may have) does that make bans on same-sex marriage instituted for those reasons in any way invalid? Or does the fact that it can be logically tied to those factors of interest to the state make those laws acceptable?

  11. John Jensen Says:

    The bar for a legitimate state interest can be pretty low. It can probably be low enough as to be, “We are defining marriage between a man and a woman because of the traditionally accepted common law definition.” Or even, “To protect the moral values of the state.” Those are not arbitrary motives. It is not the job of the court of the law to be forward-looking and it’s usually their job, in fact, is to respect the past. The elected branches are typically the ones that advance real change.

    I do not think there are constitutional issues with states not performing gay marriages. Jefferson thought the federal system’s strength allowed for each state to become a laboratory of democracy and test out different types of statues — or, in this case, marriage laws.

    The 14th amendment says that there should be equal protection of the laws. I do not believe that long-standing, traditional definition of marriage somehow violates equal protection. The most famous gay rights case, Lawrence v. Texas, completely sidestepped the issue of gay rights and equal protection.

    Wikipedia does a pretty good job of talking about the Equal Protection Clause and the various levels of scrutiny it promises.

  12. Josh Wittner Says:

    Well we can argue about whether or not protecting the moral values of the state is arbitrary, but thats for another day.

    Until then I must confess that I don’t understand the applications (which seem fuzzy) of the term ‘due process’ well enough but it seems that if a consensual sodomy law infringes on the rights of the people to liberty under the 14th then even an implicit ban on same-sex marriage (marriage being found to be a fundamental right of liberty) would violate the right to liberty of same-sex couples. I see the distinction but again, not understanding ‘due process’ well enough is probably why the distinction seems so thin to me. And I suspect that thin distinction is the line that a qualified jurist would not cross.

  13. John Jensen Says:

    Due process basically means “rule of law.” The government cannot take away life, liberty, or property without “rule of law” which means a lack of arbitrariness and a lot of basic protections. When people say Due Process Clause, they are saying that life, liberty, or property is being denied incorrectly.

    The real question is what liberty means. When the Supreme Court adds a new meaning to “liberty” it is a landmark, major decision. Liberty includes free speech, for example, and also keeping the government out of your private, sexual affairs.

    Marriage is a fundamental right of liberty as well. But “marriage” is between a man and a woman according to nearly every historical and common law definition. Society can change that definition through its representative branches. The Courts probably should not.

    Of course, some state supreme courts have ruled that gay marriage is legal on just the grounds you present, so some smart people surely do agree with you. In that case, perhaps the ends of gay equality does justify the means of expanding the definition of marriage outside of the democratic process.

    I understand that it is frustrating that a lot of the childish arguments that are brought up in the spirit of bigotry do reflect the serious problems with letting Courts simply re-write social norms and values.

  14. I agree with most of what you say John, but I have to argue with you on one point:

    “Marriage is a fundamental right of liberty as well. But ‘marriage’ is between a man and a woman according to nearly every historical and common law definition.”

    It doesn’t matter how marriage has been defined historically. For our argument’s sake, it only matters how the US defines it. And the US did not federally define marriage until DoMA in 1996. In the Loving v Virginia case, the Supreme Court “indicated the law would violate the Due Process Clause as an undue interference with ‘the fundamental freedom” of marriage.”

    If marriage had not been federally defined yet, but validated is a ‘fundamental freedom’ by the Supreme Court, then isn’t it some form of discrimination for the federal government to later step in and say, “Except for these people”? Imagine, it is unconstitutional for states to ban marriage on an issue of race… except for Mexicans.

    Maybe all the legalities were, and still are, there for gay marriage to not be federally recognized. But aren’t our laws determined by our morals and not the other way around? The current state of gay rights shows that there is a kink in our system and it NEEDS to be fixed. And that’s when we go back into the argument of how to go about doing that…

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