Marriage equality: Not for states to decide

June 26, 2013


The Supreme Court Wednesday struck down Section 3 of the federal Defense of Marriage Act — which denied federal benefits to married gays and lesbians—as discriminatory and a violation of equal protection.

The court, however, declined to address the question raised by another important case, Hollingsworth v. Perry, about whether the right to marriage extended to gays and lesbians nationwide.

So, are supporters of marriage equality better off without the Supreme Court declaring that gay and lesbian couples have a constitutional right to marry?

Most Americans now back same-sex marriage, according to a recent poll, with younger voters the strongest supporters. A majority also believes, however, that the decision to recognize same-sex unions should be left up to individual states. As more states pass laws recognizing same-sex unions, some marriage equality supporters argue that advocates “shouldn’t mess with progress.” Or they worry about a backlash if the court were to recognize a right to marriage equality that would apply in all 50 states.

Regardless of whether it is sound political strategy to “take it slow,” the fact is “letting the states decide” is not what the Constitution demands.

The Constitution enshrines certain rights and liberties as so important that they are above the politics of the day. Freedom of speech and religion, for example, are never put to a popular vote.

Though our federal system embraces state policy experimentation and diversity in many contexts, the Constitution was amended after the Civil War to take away from the states the ability to “experiment” with laws that perpetuate inequality. The Constitution does not allow a state to vote on reinstating segregation. Nor does the Constitution permit states to place a badge of inferiority on gay and lesbian couples and their families.

The Supreme Court may be reluctant to unequivocally decide what it considers to be a hot-button social issue that is still percolating through the states. The Constitution, however, stands for the proposition that some rights cannot be left to the whims of a democratic majority. Equality before the law is one of those rights.

Consider our nation’s history of racially discriminatory marriage laws. In 1967, while much of the nation had moved on from abhorrent antebellum attitudes about marriage between people of different races, 16 states still had laws on the books that prohibited interracial couples from marrying. Fourteen other states had repealed similar laws over the previous 15 years.

But the Supreme Court did not decide to wait and see if the rest of the United States would follow suit when Mildred and Richard Loving, a black woman and a white man, asked the court to strike down Virginia’s ban on interracial marriage.

Instead, the Supreme Court, in Loving v. Virginia, applied the Constitution’s guarantees of equality and liberty to strike down Virginia’s discriminatory marriage law as unconstitutional — striking down the other 15 state laws along with it.

The court’s 1967 opinion noted that marriage is something traditionally left to the states. It observed that there was a long history of limiting marriage to persons of the same race — Virginia’s law had roots in the colonial period. It acknowledged that the drafters of the 14th Amendment may not have originally intended the amendment to strike down laws prohibiting two people of different races from marrying. It also noted that some states had recently established more equitable marriage laws of their own accord.

Yet the Supreme Court still struck down Virginia’s discriminatory marriage law — ruling it unconstitutional.

The Supreme Court should have followed this precedent in the challenge to California’s ban on same-sex marriage.

Yes, marriage is still a subject traditionally left to state regulation — but our Constitution places limits on how states can regulate marriage. Yes, our country has a long history of discriminating against gay and lesbian couples — but the court has repeatedly emphasized that the historical persistence of discrimination cannot save such practices from being struck down as unconstitutional.

After all, if a history of discrimination could carve out an exemption from the Constitution’s guarantee of equality, we’d still have segregated schools.

In addition, the drafters of the 14th Amendment may not have been specifically thinking of gay and lesbian couples when they spoke of the need to ensure that the basic civil right of marriage was equally available to all. But the amendment’s guarantee of “equal protection of the laws” is sweeping and universal. It protects all people, whether African-American or white, gay, lesbian or heterosexual, native-born or immigrant.

As the framers of the 14th Amendment recognized, the right to marry the person of one’s choosing is a protected civil right, inherent in liberty and freedom; and the equality of rights secured by the amendment’s Equal Protection Clause includes the equal right to marry the person of one’s choice.

By denying same-sex couples the right to marry, California’s Proposition 8 contravenes this original meaning. Fortunately, today’s ruling from the Supreme Court in the Prop 8 case leaves the federal district court’s decision recognizing this fundamental right to stand. And Justice Anthony Kennedy’s opinion in Windsor, striking down Section 3 of DOMA, has words of encouragement for gay and lesbian couples seeking recognition that their relationships are “worthy of dignity in the community, equal with all other marriages.”

Given that the majority of Americans now support marriage equality, there is hope that other states will right this wrong on their own. But the Constitution tells us — in no uncertain terms — that this equality is not apportioned based on popularity or political convenience.

The Supreme Court should not shy away from applying the Constitution. Or its promise of equality for all could begin to ring hollow.


PHOTO (Insert A): Michael Knaapen (L) and his husband John Becker react to the ruling striking down the Defense of Marriage Act at the Supreme Court in Washington June 26, 2013. REUTERS/James Lawler Duggan

PHOTO (Insert B) Supreme Court in Washington REUTERS

PHOTO (Insert C): Supreme Court Associate Anthony M. Kennedy in Washington, Oct. 8, 2010. REUTERS/Larry Downing


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“Marriage equality: Not for states to decide”

Not much of anything is left for “states to decide” (Used to be called “states rights…”).

But The states themselves are ever more proscripitve of citizen’s behavior and restrictive their liberty, so it doesn’t make much difference, really.

Get remotely locted, and stay under the radar and regret the loss of what used to be shared cultural values

Posted by unionwv | Report as abusive

THIS is an argument regarding the 10th Amendment. States, not the federal government have the right to set up the standards for marriage, licensing (other than air, sea and interstate commerce), education, etc. That is to say, those items which are not explicitly mentioned in Article I, Section 8 of the Constitution. It includes medical practices and licensing, the right to die, the right to smoke, etc. While I don’t agree with the specifics of the previous decision on Civil Rights and voting, I do applaud the Court for saying that the 10th Amendment is alive and well. The federal case really was about social security and money, not the cultural aspect. It will be interesting to see the Court’s view of Article IV of the Constitution as it applies to a gay coupled married in one state going to another state. As a former teacher of the Constitution, I am fascinated by these discussions relating to parts of our Constitution.

Posted by chekovmerlin | Report as abusive

“Aw, geeze, Edith, there’s a homosexual in the woodpile, again!”

Sure would like to see MORE writers calling this abomination just exactly WHAT it is: HOMOSEXUALITY.

Posted by Splitter226 | Report as abusive

Some related qs:
– Does a muslim man have a constitutionally protected right to marry 4 wives in, say, California, as is common in the Middle-East?
– How would the IRS code work if such a man died and 1 or more of the wives takes ownership of a family home?
– Still more complicated, in some muslim societies (e.g., Saudi) there can be more than 4 wives, but there is a distinction between the first 4 and numbers 5 onward, who are not exactly “mistresses” in modern western concept.
– And, at least one society – in the Himalayas, I think – accepts a wife taking two husbands. How would the IRS handle this?

Posted by jonathb | Report as abusive

It’s ‘queer’ (funny) how some previous Supreme Courts have had the structure of the Constitution at the heart of their decisions while others exude their human frailties and fears. The current court seems ‘squeamish’ in this context… What do they fear? Being equated with historic precedent that knocks down one of the last bastions of discrimination in regard to that puritanical and prudish abhorrence to anything dealing with sexuality? Do they ever think about the implications of this kind of messaging to the younger people in our society? Whatever one’s sexual orientation, should they be embarrassed to acknowledge the fact that every one of us is a sexual creature? This is where our societal troubles really begin…. yet, SCOTUS reflects the adolescent aspects of our society’s current mindset… we ARE evolving… adaptation is a gradual process it would seem…

Posted by Papersails | Report as abusive

We already have marriage equality: One man + one woman! You can’t have any more equality or diversity of the sexes than woman + man! In contrast, sexual preference is just as exclusive as racial preference. Thank God that the Supreme Court did not bring us back >50 years to force the public institution of marriage to accept gender-exclusive marriage. Two men with a sexual preference is no more diverse than two same-race oriented people in 1967! Why would we want to go back to bigotry?

Let’s celebrate diversity: One man + one woman!

Posted by EqualSexes | Report as abusive

Your strongly-voiced “argument” is nothing more than your personal opinion, but contains no facts to support it.

The 14th Amendment was designed specifically to ensure the rights of blacks in this country, due to treatment they had received as slaves.

It has also been “misused” by some to ensure blacks are not only “equal”, but “more than equal” (i.e. reverse discrimination through “affirmative action), as if past wrongs can be somehow reversed by the denial of rights to present citizens who had nothing whatsoever with slavery.

There is no moral way to justify such actions, or to put it more simply (i.e. on a level your mind can accept), “two wrongs do not make a right”.

That is a zero sum game for this nation.

Frankly, my “bullshit-o-meter” went off the scale on the amount of “rah, rah, sis, boom, bah” in this poorly written screed.

I was going to point out some obvious legal errors in your interpretation of the 14th Amendment, but frankly you have departed from reality so far there is no way I can cover it all in this venue.

Let me say your statement that “The Constitution enshrines certain rights and liberties as so important that they are above the politics of the day. Freedom of speech and religion, for example, are never put to a popular vote” sent shivers down my spine.

This IS about the “politics of the day”.

To characterize it any other way is to misunderstand the importance of the “politics of the day” in terms of how we govern ourselves. Notice I said not how we are governed. There IS a difference.

What you are arguing is that the federal government — actually, nine fallible men and women who are entirely above the law, and not subject to the US Constitution at all, but supposedly are able to determine what it means for this entire nation at any point in time — has the right to decide on its own and enforce “certain rights and liberties as so important that they are above the politics of the day”.

I wasn’t aware there are any “eternal truths” that all people everywhere would agree that are above the “politics of the day”.

What IS “enshrined” in the constitution is that this is a “democracy”, not a kingdom or dictatorship subject to the whims of a person or an elite minority who can decide for us what is right.

If you care to look at the history of the rulings of the US Supreme Court, you will notice they have made MANY mistakes in the past.

Let’s hope by this time the supreme court has learned enough about racial equality that they choose not to take that road again.

ANY nation that ignores the “politics of the day” risks putting itself in jeopardy of being overthrown by its own people.

As a matter of fact, that is exactly how the US Constitution came into being — or have you forgotten?

You are young and have the impatience of the young, but I suggest you tone down the inane “cheerleading” and do a reality check on what you are saying before engaging in more screed like this. It serves no useful purpose, but only tends to inflame what is already a “hot button” issue. One in which I believe we should move carefully and with deliberation.

Posted by EconCassandra | Report as abusive

“Deep in our hearts, we do believe that we shall overcome the evil lethal myth of heterosexual-supremacy that dominates life and law in Pennsylprejudice.” ~ Revs. Timothy George Hare RA MA Architect and Earl David Ball, M.Div, S.T.M.

Video: SA

Posted by RevTimmy | Report as abusive