Gay Marriage And States Rights

Gay Marriage

Watching the story surrounding the arguments before the Supreme Court is fascinating.  I love hearing the back and forth not only among the partisans but the “experts” as well.

Some thoughts.

I love President Obama being called out:

Chief Justice John G. Roberts Jr. and some of the other more conservative justices expressed irritation that the case was before them at all and said President Obama’s stance – to enforce the law but not defend it – contradicted itself.

“I don’t see why he doesn’t have the courage of his convictions” and not enforce the law if he thinks it is unconstitutional, the chief justice said.

This goes to the decision by the President that the law was unconstitutional and that his Justice Department wouldn’t defend the law in court.  However, Obama is still enforcing the law and when the law was struck down by a lower court, Obama appealed it to the Supreme Court.

 Then, I never would have thought I’d see the day when a liberal Justice would appeal to the concept of state’s rights:

“It’s not as though there’s this little federal sphere … you’d be really diminishing what the state has said is marriage,” Ginsburg said.

I think that if Ginsburg rules DOMA unconstitutional because of state’s rights, the left is going to have a hard time fighting state efforts to ban gay marriage.

As for me, I think that gay marriage is protected federally in the same way that interracial marriage is protected federally.

15 responses to “Gay Marriage And States Rights

  1. Every justice, liberal or conservative, believes in states rights. How they get defined varies, but no one denies that the constitution gives certain powers to the state. I think DOMA will fall. Not sure about the California case. If the court rules gay marriage a right like interracial marriage, then I think the game is over – not much the states can do. If California’s right to ban gay marriage is upheld, then battles will continue. I have a hunch the court will make gay marriage a right – but that’s just a guess. I think the prospect of marriage being treated unequally in different states will be troubling to them. I’d be very surprised if DOMA didn’t get overturned.

    Not sure why Obama continued to enforce but not defend the law. I think Roberts’ criticism is valid. Perhaps Obama wanted to force the issue – wanted it to go to court. Because if the law stays on the books, the next President can choose to enforce it.

    • Every justice, liberal or conservative, believes in states rights.

      I disagree.

      I think DOMA will fall.

      Me too. However, it will be a hollow win. The feds will only acknowledge gay marriage i those states that allow it.

      If California’s right to ban gay marriage is upheld, then battles will continue.

      Yup. With the eventual acceptance of gay marriage. The problem i California? They extend every benefit of marriage to gay couples but withhold the word. I think pro-gay marriage folks are being silly.

      Because if the law stays on the books, the next President can choose to enforce it.

      I don’t like the President declaring a law unconstitutional and not defending it. Added to his waivers, Obama has set a dangerous precedent. Imagine, if I win the the White House in 2016. I might say that I find progressive taxation unconstitutional and, because I want to, will extend waivers on people who earn more than 80k.

  2. I question why suddenly Gay Marriage is so politically correct . To be against it makes you a bigot . To speak against it brings down the wrath of God, if leftists had a God . Until very recently the Clintons and President Obama were bigots, by that definition . I wonder if all of the Gay political contributions to the Democratic Party in the last election cycle had any part in the redemptions now going on in the party in power .

    I have been trying to compare the arguments for Gay Marriage to the arguments for Gun Control . I wonder if those of us against Gay Marriage could learn from those who are against the Right to bear arms ? California is as left wing as you can get outside of Western Europe, yet they voted against Gay Marriage . Most Americans must therefore believe in such common sense legislation . DOMA is only common sense regulation .

    Also if Gay Marriage is inevitable, why the big rush to get it now ? Could it be that the left is worried that the window of opportunity might just slam shut if there were to be a sudden shift in the tectonic plates of American politics ?

    • I question why suddenly Gay Marriage is so politically correct . To be against it makes you a bigot .

      My take has always been that you can be “against” gay marriage and yet acknowledge that gay individuals have the right to enter into marriage contract law.

  3. I agree with you to the extent that I don’t think the Supreme Court is going to step in and tell states like South Carolina that they can’t ban gay marriage. What we’ll end up with over time is a patchwork that looks something like the 2012 electoral map.

    • I agree with you to the extent that I don’t think the Supreme Court is going to step in and tell states like South Carolina that they can’t ban gay marriage.

      I wanna know what it means if the liberal justices acknowledge States Rights in this case.

      Why would state get to define marriage any old way and not regulate, say guns, or voting rights or anything else?

      • Well the liberal justices do think states can regulate guns, so I’m not sure that’s the best example. I think if you go back through the Supreme Court’s docket you might be surprised to see how often they rule in favor of states being able to do whatever they want to do (or how many times they decline to hear cases where a lower court said the state can do what it wants).

        I think it might help to clarify the exact issue you’re talking about. I think what some on the court were getting at (Kennedy, most of all, by the way) is that the state is responsible for issuing marriage licenses, and has been for a long time. So DOMA, which gave the federal govt authority over marriage in the absence of anything in the constitution that said it had such power, would be unconstitutional. Keep in mind that the constitutionality of federal legislation is a separate issue from whether a state law is itself a violation of the US Constitution. Hence the reason many people expect the court to let the California law to stand while striking DOMA down.

        • Well the liberal justices do think states can regulate guns, so I’m not sure that’s the best example.

          Yeah… I wasn’t clear. Or rather, I wasn’t complete.

          So yes, states get to regulate guns. And states get to regulate marriage.

          If they say that the feds cannot regulate marriage, how do they explain letting the feds regulate guns?

          Hence the reason many people expect the court to let the California law to stand while striking DOMA down.

          Yes, I think DOMA is done for. Ironically, a win for everybody. Conservatives get states rights and liberals get fed recognition.

          However, I think that means Prop 8 is constitutional.

          My only question is this: Why is it unconstitutional to regulate inter-racial marriage but not unconstitutional to regulate gay marriage?

  4. Pino ,

    I do not understand this constant argument that Gay individuals are not allowed to get married . Of course they can marry . As far as restricting who they can marry . We already have restrictions on who, someone can marry .

    Close relatives cannot marry because of incest . Allow me then to take this to a logical conclusion . If you allow Gay marriage, then why not incest ? You no longer have child production in the equation . We all know that many times marriage is merely used as a way to get an uninsured person onto an insured friend’s health insurance . So what is to stop Gay Parent-Child or Gay Sibling-Sibling marriages of financial convenience ? I bet this limit will get tested by someone .

    With divorce rates high and unmarried couples with children becoming increasingly common, the institution of Marriage is pretty shaky with out further standards inflation .

    • If you allow Gay marriage, then why not incest ?

      I think that question and the one speaking to polygamy are valid questions if the court forbids the states from regulating marriage. Incest is tough because as far as I know it works to prevent children with developmental issues. But no one is suggesting that we regulate who can have children….

  5. I hope that the court makes a narrow ruling. It appears to me that for better or worse eventually all 50 states will have gay marriage or at least the equivalent of it. Southern states like where you live will likely take the longest. Pino, I like your comment about being against gay marriage, but still acknowledging the freedom to enter into the marriage contract (how does that hurt heterosexual after all?).

    But I think this social change should and will come via the political process with fewer bad side effects than if it comes from a single ruling of the SCOTUS. The latter is how we got Roe v Wade and the endless heat and little light in the abortion issue.

    • Pino, I like your comment about being against gay marriage, but still acknowledging the freedom to enter into the marriage contract (how does that hurt heterosexual after all?).

      Correct. I’m against anyone ever dating my daughter. Especially a Democrat from Green Bay. 😉

      But I’d never legislate it.

  6. I forgot to mention that Obama’s arch on the issue seem annoying in the extreme. The whole evolving period seemed like nothing but a dishonest way to have it both ways. He seemed to be saying: “I not not for gay marriage because it suits my political purposes to be able to say that, but I will be when it suits my political purposes”. That’s nothing if not unprincipled.

    • The whole evolving period seemed like nothing but a dishonest way to have it both ways.

      Oh, totally.

      When he was running in 2008, did anyone ever really believe that he didn’t support gay marriage?

      I don’t think so.

      However, you’re seeing democrats the nation over “coming out” now. See Hillary.

  7. Consistency is important . A person can change their mind, they can evolve . But if you look at Barak Obama, in the 90s he was for gay marriage. Then he evolved into an anti gay bigot while running for the US Senate and for US President . Now he has evolved backwards into a politically correct pro gay marriage good person . Evolution is truly a magical thing . One can evolve into whatever one needs to become.

    Those of us who have never been hypnotized by President Obama have always pointed out his inconsistencies . When criticizing President Bush he was a great deficit hawk, now not so much . When running for reelection President Obama boasted of expanding gun owner rights , now not so much .

    The pro gay marriage folks had better keep the wind and the big money at President Obama’s back .

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