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Federalism and marriage
Published July 24, 2006
Last month, a proposed constitutional amendment to outlaw same-sex marriage failed in the Senate. But that didn't affect the plans of House Republicans, who insisted on having their own, irrelevant vote on the issue. Last Tuesday, the amendment fell 47 votes short of the two-thirds majority required for passage.
It's a mystery why opponents of gay marriage wanted to spend more time and energy on a fight they had already lost--particularly when they are winning many other fights.
The real battle is taking place in the legislatures, not Congress. Regulation of marriage has traditionally been a state responsibility, with states differing on the minimum age and the rules for obtaining a divorce, and nothing about this particular aspect suggests it can't be addressed adequately at that level. Twenty states have constitutional provisions prohibiting same-sex marriage, and another 25 have laws to the same effect.
All the momentum here is on the side of those who want to keep marriage exclusively heterosexual.
Last week, a federal appeals court upheld a ban approved in 2000 by voters in Nebraska, overturning a lower court decision ruling it unconstitutional. In Tennessee, meanwhile, the state Supreme Court agreed to let voters decide in November whether to incorporate its statutory ban into the state constitution.
Those came on the heels of a decision by the highest state court in New York. It rejected claims that the existing ban violates the state constitution by infringing on the right of homosexuals to equal treatment.
As Frank Sinatra might say, if gay marriage can't make it there, it can't make it anywhere. Even, possibly in Massachusetts--the only state so far that has legalized it. Recently, the state's Supreme Judicial Court unanimously agreed that Bay State citizens may vote on a constitutional amendment to outlaw same-sex marriage, which means a referendum could be held in 2008 if the legislature approves.
Opponents had argued it was unconstitutional to let the electorate vote an initiative to overturn a judicial decision, but the court disagreed.
"The plain language of [the constitution] does not bar the people from using the initiative process to amend the constitution," it said.
All this should be good news for anyone who thinks marriage should be restricted to one man and one woman. But it's even better news for supporters of federalism--which holds that many important responsibilities ought to be entrusted to state governments and their people.
There is no obvious reason for the federal government or the federal constitution to dictate a policy on this issue. If residents of New Hampshire disagree with the policy in Massachusetts, they are free to chart their own course.
In the first place, they have the right to decide policy for marriages taking place within their borders. And federal law explicitly stipulates that states may refuse to recognize those from other states.
States have shown that they are more than willing to act to uphold marriage strictly in its traditional form. The puzzle is why opponents of gay marriage want to get in their way.