Gay Marriage Quicksand
The President’s recent announcement that he supports a constitutional amendment defining marriage has intensified the gay marriage debate. It seems sad that we need government to define and regulate our most basic institutions.
Marriage is first and foremost a religious matter, not a government matter. Government is not moral and cannot make us moral. Law should reflect moral standards, of course, but morality comes from religion, from philosophy, from societal standards, from families, and from responsible individuals. We make a mistake when we look to government for moral leadership.
Marriage and divorce laws have always been crafted by states. In an ideal world, state governments enforce marriage contracts and settle divorces, but otherwise stay out of marriage. The federal government, granted only limited, enumerated powers in the Constitution, has no role whatsoever.
However, many Americans understandably fear that if gay marriage is legalized in one state, all other states will be forced to accept such marriages. They argue that the Full Faith and Credit Clause of the Constitution essentially federalizes the issue; hence a constitutional amendment is necessary.
But the Defense of Marriage Act, passed in 1996, explicitly authorizes states to refuse to recognize gay marriages performed in other states. Furthermore, the Supreme Court repeatedly has interpreted the Full Faith and Credit clause to allow Congress to limit the effect of state laws on other states. In fact, federal courts almost universally apply the clause only to state court judgments, not statutes. So a constitutional amendment is not necessary to address the issue of gay marriage, and will only drive yet another nail into the coffin of federalism. If we turn regulation of even domestic family relations over to the federal government, presumably anything can be federalized.
The choices are not limited to either banning gay marriage at the federal level, or giving up and accepting it as inevitable. A far better approach, rarely discussed, is for Congress to exercise its existing constitutional power to limit the jurisdiction of federal courts. Congress could statutorily remove whole issues like gay marriage from the federal judiciary, striking a blow against judicial tyranny and restoring some degree of states’ rights. We seem to have forgotten that the Supreme Court is supreme only over lower federal courts; it is not supreme over the other branches of government. The judiciary is co-equal under our federal system, but too often it serves as an unelected, unaccountable legislature.
It is great comedy to hear the secular, pro-gay left, so hostile to states’ rights in virtually every instance, suddenly discover the tyranny of centralized government. The newly minted protectors of local rule find themselves demanding: “Why should Washington dictate marriage standards for Massachusetts and California? Let the people of those states decide for themselves.” This is precisely the argument conservatives and libertarians have been making for decades! Why should Washington dictate education, abortion, environment, and labor rules to the states? The American people hold widely diverse views on virtually all political matters, and the Founders wanted the various state governments to most accurately reflect those views. This is the significance of the 10th Amendment, which the left in particular has abused for decades.
Social problems cannot be solved by constitutional amendments or government edicts. Nationalizing marriage laws will only grant more power over our lives to the federal government, even if for supposedly conservative ends. Throughout the 20th century, the relentless federalization of state law served the interests of the cultural left, and we should not kid ourselves that the same practice now can save freedom and morality. True conservatives and libertarians should understand that the solution to our moral and cultural decline does not lie in a strong centralized government.