Federalism And Marriage

Former Congressman Bob Barr has the single most insightful piece I’ve yet read about the whole issue of same-sex marriages: the federal government has no right to get involved.

Marriage is a quintessential state issue. The Defense of Marriage Act goes as far as is necessary in codifying the federal legal status and parameters of marriage. A constitutional amendment is both unnecessary and needlessly intrusive and punitive.

The 1996 act, for purposes of federal benefits, defines "marriage" as a union between a man and a woman, and then allows states to refuse to recognize same-sex marriages performed in other states. As any good federalist should recognize, this law leaves states the appropriate amount of wiggle room to decide their own definitions of marriage or other similar social compacts, free of federal meddling.

Both conservatives and liberals have to understand that there is no way of getting a satisfactory compromise on the national level on this issue. Furthermore, the Constitution specifically reserves rights such as the definition of marriage to the states under the Tenth Amendment (the amendment that everyone seems to forget about when it becomes inconvenient…).

No less a leftist radical than Vice President Dick Cheney recognized this when he publicly said, "The fact of the matter is we live in a free society, and freedom means freedom for everybody. . . . And I think that means that people should be free to enter into any kind of relationship they want to enter into. It’s really no one else’s business in terms of trying to regulate or prohibit behavior in that regard. . . . I think different states are likely to come to different conclusions, and that’s appropriate. I don’t think there should necessarily be a federal policy in this area."

Vice President Cheney is right. The federal government is not the place for this debate. The federal government has no constitutional interest in dictating policy to the states on an issue that is expressly reserved to the state level. As Mr. Barr writes:

I worry, as do supporters of the constitutional amendment on marriage, that a nihilistic amorality is holding ever greater sway in the United States, especially among the young. Similarly, I agree that the kernel of basic morality in America — the two-parent nuclear family — has eroded under the influence of the "me" generation, which has left us with an astronomical divorce rate and a tragic number of hurting families across the country.

Restoring stability to these families is a tough problem, and requires careful, thoughtful and, yes, tough solutions. But homosexual couples seeking to marry did not cause this problem, and the Federal Marriage Amendment cannot be the solution.

3 thoughts on “Federalism And Marriage

  1. But it can’t be left to a state issue, either. It’s discriminatory for certain types of marriage to be valid in all states, but other types, valid only in certain states.

    And that Tenth Amendment also grants rights to the people, too, especially combined with the Ninth Amendment.

    Cheney’s argument is as valid for the states as it is for the federal government. The states have no business determining who can’t marry. And the full faith and credit clause suggests that they have no right to refuse to honor marriages performed in other states.

  2. Furthermore this:

    Similarly, I agree that the kernel of basic morality in America — the two-parent nuclear family — has eroded under the influence of the “me” generation, which has left us with an astronomical divorce rate and a tragic number of hurting families across the country.

    Is just ignorant. Two-parent + children families have never, at any point in human history, been “traditional” or otherwise represented the majority of families. Extended families have largely been the rule, so saying we’ve departed from something that we never really had is just plain dumb.

    And I love how it’s equated with selfishness to allow two loving people to do what they want, as though two men having anal sex in Texas is enough to destroy my marriage in Minnesota.

  3. Then get government out of the business of defining marriage altogether, and let government focus on marriage as a contractual matter – something the courts are equpped to decide.

    Sounds just fine to me.

    OK, since we’re bringing history into it: at EVERY point in human history, the family (nuclear, extended or what have you) has always been about having and raising children.

    So? Many gay couples adopt. If they could marry then they could be sure custody would extent to the other partner after the death of the first. And your argument is simplistic – it assumes everyone who marries does so to have children. Actually I don’t even know what you’re trying to argue at this point.

    Let’s get the government out of marriage, then. Civil unions for everybody!

    I don’t particularly oppose gay marriage (or at least civil union) in the legal sense. But I find most of the non-legal arguments for it very hollow.

    Ten point penalty for generalization. Many gay people adopt children, or have them from previous relationships.

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