If I had my druthers, the government wouldn’t even be involved in the business of marriage. What in the past was primarily a union for child-rearing or sometimes even a purely economic arrangement is these days mostly a symbolic gesture for the participants–and for the state, a way to manipulate them. Today, the divorce rate is so high it’s become a cottage industry, and so many babies are born out of wedlock that Maury Povich has a career. Yet the government’s regulation of marriage affects one’s level of taxation, insurance category, inheritance rules, and hospital visitation rights. These are all decided by the state and are perhaps the best argument for gay marriage. Who is the government to determine whether a gay couple of 50 years can share health insurance or if one partner dies who might inherit the family home?
And who is the federal government to tell California whether or not it must adopt gay marriage? A majority of Californians decided in November that they did not want gay marriage. Last week a federal judge overturned their referendum, claiming the 14th Amendment somehow gives him this power. But what does an amendment originally designed to protect the basic civil rights of former slaves have to do with gay marriage? Is marriage now a basic civil right, in much the same way many liberals believe healthcare is? President Obama and his party have argued toward this end regarding healthcare, and would no doubt herald any federal judge who agreed with them–even as a strong majority of Americans continue to disapprove of Obamacare. But it doesn’t matter, as we are instructed to believe and respect that any federal court ruling is somehow sacrosanct and final.
Whether the feds use the 14th Amendment (but never the 10th), the Supremacy Clause, Interstate Commerce–any stick will do to beat a dog–these are parts of the Constitution that once had solid and definable meanings, but their definitions have now been stretched so far that they can be construed to mean virtually anything. When Supreme Court nominee Elena Kagan was asked by Oklahoma Sen. Tom Coburn during her confirmation hearings whether or not, according to her interpretation of the Constitution, the federal government could force every American to eat three vegetables a day, she answered honestly. She said yes.
You have to admire Kagan’s honesty–just as you have to be amused by those now cheering the judge’s reversal of Prop 8 in California. Weren’t these the same liberals who thought the Supreme Court was interpreting the 2nd Amendment too broadly last February when it overturned Chicago’s gun ban? If the Golden State had a governor worth a damn, he would stand by his constituents’ original referendum and simply defy this judge’s decision–not necessarily because he’s for or against gay marriage, but because it’s none of the federal government’s business how California regulates it.
If they’re consistent, those now cheering this newfound federal supremacy concerning the reversal of Prop 8 will call for the arrest and prosecution of those who sell or use medicinal marijuana, something openly and commonly available in California right now–and against federal law. When the feds attempted to regulate alcohol in 1920, they were at least honest enough to recognize that they had to pass the 18th Amendment to give them this new power. What part of the Constitution today gives the federal government the right to dictate states’ regulation of drugs? The same part that gives a federal judge the right to dictate the rules of marriage to states–no part in particular and every part broadly interpreted. Just ask Elena Kagan.
I could give a hoot in hell whether or not gays marry. But I do give a hoot about a logical interpretation of the Constitution, which necessarily includes a balance between state and federal power, with the former keeping a check on the latter. In 2006, the so-called “Marriage Protection Amendment,” defining marriage as being between one man and one woman, ultimately failed in Congress, but only by 56 votes in the House and 11 in the Senate. This is a horrible idea–the feds should have no business regulating marriage–that could feasibly be revisited in the future. The amendment was introduced in part as a federal reaction to states like Vermont, Massachusetts, New Hampshire, and others that had legalized same-sex unions. If living in any of these states, I would likely be considered a “gay activist” for the same reason some likely consider me “homophobic” for opposing the overturning of Prop 8 in California–it is far more important to keep the federal government in its constitutional box than to continuously empower it for personal, political and often temporary reasons.
Arguably, the most practical, modern purpose of states’ rights is that it gives a nation of 300 million people a good way to agree to disagree on the social issues that continue to divide these not-so-United States. You don’t have to be for or against gay marriage to recognize that today’s gay-friendly federal government could just as easily become tomorrow’s worst nightmare for everyone. Just ask the poor souls who’ve had to suffer through terrible pain needlessly, due to the federal government’s ridiculous ban on medicinal marijuana. California is right to continue defying, or nullifying, that particular federal dictate–and should now do the same concerning gay marriage.