Ken McElroy Online

States Rights, Democrats' Flavor of the Month

Ken McElroy
February 25, 2004

This week President George W. Bush offered his support for the idea of amending the U.S. Constitution to define marriage as a union between one man and one woman, and to prevent the courts from imposing same-sex marriages on the entire country by judicial fiat. Liberals, predictably, went nuts, with accusations of bigotry, disregard for the Constitution, etc.

Interestingly, liberals and conservatives seem to have traded their normal ideological turf in the argument over same-sex marriage. Conservatives are usually associated with the "states rights" argument, which holds essentially that issues should be dealt with at the state or local level with little or no interference from the federal government. And liberals usually want to nationalize everything. For example, abortion was regulated on a state-by-state basis before the Roe vs. Wade decision in 1973. The nationalization of abortion rights is now solid liberal dogma.

Liberals overwhelmingly supported, even celebrated, a single nationwide mandate in the U.S. Supreme Court decision in Lawrence vs. Texas in June 2003. In that case, police in Texas arrested two gay men for engaging in behavior in violation of Texas' anti-sodomy law. The Supreme Court held the Texas law unconstitutional, which effectively resulted in a single federal standard. Now, less than a year later, Democrats support "states rights" in regard to defining marriage. What's the difference?

It's likely some states would ban gay marriage and civil unions under this standard, which by liberals' own reasoning equals outright discrimination. So why are Democrats now eager to allow the possibility for a single state to discriminate, when they so adamantly opposed the same principle last June? How can they espouse this "states rights" standard with such obvious inconsistency?

Because liberals do not really believe in leaving issues like same-sex marriage up to the states, they want to leave it up to courts, who today are likely to rule the way liberals want. They want their position imposed undemocratically, and that way they get what they want without taking responsibility. The only way it makes any sense at all is as a political ploy. The Democrats hold an unpopular opinion about the institution of marriage, in opposition to most Americans. It's a stand on politics, not principle.

Many opponents of the Federal Marriage Amendment are now taking the "states rights" tack, but the most blatant hypocrisy in this regard has come from Senator John Kerry, the probable Democratic Party nominee for president. Kerry was one of only 14 senators to vote against the federal Defense of Marriage Act in 1996. The central purpose of DOMA was to leave the issue to individual states, so that marriages in one state would not be imposed on all states by the federal government through the constitution's "full faith and credit" clause.

Senator Kerry now says he wants to leave the definition of marriage to individual states, which is precisely what the law he voted against does. These two positions are diametrically opposed to each other.

In June 2003, Kerry supported the Lawrence vs. Texas ruling, stating, "When the law is twisted to stigmatize one group of Americans, it diminishes the rights of all Americans."

Senator Kerry now says he wants to allow states such as Texas to deny gays the right to marry. This is the clear implication of his current "states rights" stance. Either something fundamentally changed in the last 8 months, or this is pure political posturing.

But aren't both sides being equally hypocritical here? Didn't conservatives and Republicans support the "states rights" ideal in Lawrence vs. Texas, and now they want to nationalize the definition of marriage? Well, no. It's not so simple. Regarding Lawrence, conservatives argued that the state legislature of Texas should decide Texas law, not the Supreme Court. No state legislature has voted to legalize gay marriage. Instead we have judicial fiat in Massachusetts, rogue anarchist local officials like the mayor of San Francisco ignoring clear state law which bans issuing marriage licenses to same-sex couples, and the potential for the federal courts to impose gay marriage nationally.

Additionally, conservatives have never argued that every question should be decided at the state level. Of course there are issues of national importance. The fundamental role of government is to preserve our civilization for future generations. The primary building block of our civilization has been the traditional family unit - a mother and father raising children. It must be granted that this is of considerably greater national importance than any principle at stake in the Lawrence case. Therefore, it makes more sense to decide, democratically, on a single standard for all of us, which is what a constitutional amendment would do.

Whether one supports or opposes same-sex marriage, it should matter to every American how this issue is ultimately decided - by anarchy and judicial fiat, or by the democratic process. That's almost as important as the marriage issue itself.