Jon Rauch favors a federalist approach to both gay marriage and marijuana legalization:
That some states could try same-sex marriage without betting the whole country reduced the stakes and contained the conflict. States’ experiments with gay marriage educed valuable information about its real-world consequences, or lack thereof, allowing for a better-informed, more rational debate. …
State leadership on marijuana policy has all of the same advantages as on marriage. It contains conflict by reducing the stakes; educes knowledge about what happens if marijuana policy is changed; and allows incremental adjustment to social change. For the federal government, yielding some measure of control over marijuana policy to the states is not a threat; it is an opportunity to manage change and preserve options. Painting federal policy into a corner serves no one, not even drug warriors.
25 Comments for “Gay Marriage and Pot: State by State”
posted by Tom Scharbach on
Like it or not, we have a federal system, and the laws regarding marriage are historically reserved to the states.
States have the right, under our Constitution to define civil marriage according to their own lights, so long as their laws do not violate the Constitutional rights of citizens.
Messy it is, as the division between the states on first cousin marriage demonstrates, but efforts to federalize marriage — like the FMA, for example — come at a high price.
The proper question is not federalism, but whether the anti-marriage laws and state constitutional amendments violate the rights of citizens.
posted by Clayton on
One key difference between cousin marriage and gay marriage: if I marry my female cousin in Texas, where it is legal, and then move to Louisiana, where it isn’t, chances are that my marriage will still be recognized. I can’t think of a single form I have ever seen that said “The state refuses to recognize cousin marriage.” However, when I married my husband and tried to put him on my health plan, I did get a form letter which said–in all CAPS–THE STATE DOES NOT RECOGNIZE SAME SEX MARRIAGE. So on marriage issues, it seems the full faith and credit clause covers cousins, but not gays or lesbians.
posted by Tom Scharbach on
The difference between the two cases has to do with the “public policy exception” to full faith and credit. A state is exempted from full faith and credit with respect to other states’ laws against which it has a clear public policy. Not, mind you, that states act on the public policy exception when it comes to straight marriages.
The bottom line is that straights take care of their own. No state would dream of refusing to recognize a straight marriage performed in another state, simply because it is against the laws of the state.
The special status — a negative status — accorded same-sex marriage is bias-based discrimination, pure and simple, shrouded in religious clothing. But the religious window dressing is a crock.
Take the nation’s largest religious denomination, the Catholic Church. Has anyone, ever, seen the Catholic Church demand a “religious exception” for itself with respect to remarriage after divorce, which it defines as adultery, a grave sin? Of course not. Adultery doesn’t threaten the Church, because straights do it.
What cracks me up, and not in a good way, is the way in which same-sex marriage inverts the thinking of a lot of social conservatives. Protestants, who since time immemorial prided themselves on refusing to recognize marriage as a “sacrament” because it was Roman invention (“man made rules” and “unbiblical”), now fall all over themselves talking about the “sanctity of marriage”. Conservatives from the South, long insistent on the near-religious status of “states rights”, suddenly demand a federal marriage amendment to abrogate marriage as a reserved power. And so on. Get a social conservative within 800 yards of marriage equality, and their principles flip like pancakes.
I’m coming to the conclusion that fairy dust does something weird to a lot of straight people.
posted by Houndentenor on
many states allow first cousins to marry. Rudy Giuliani’s first wife was also his cousin. I don’t know where the idea comes from that it’s illegal. It’s usually not. In fact the states that ban gay marriage almost all allow cousins to marry. People seem ignorant of this fact while spewing their anti-gay bigotry. That’s not surprising, but it is frustrating.
posted by Tom Scharbach on
I don’t know where the idea comes from that it’s illegal.
It comes from reading the statute books.
Example: Wisconsin is one of the “legal under certain circumstances” states. Here’s our statute:
Knocks a hole in the “marriage is all about procreation” nonsense that our social conservatives constantly yap about, huh?
In fact the states that ban gay marriage almost all allow cousins to marry.
Just be glad that they stop at that …
We’ve got an area about 30 miles north of us in which the frequency of inbreeding exceeds that of the British royal family. Everybody jokes about it, but after a few generations, it isn’t funny.
posted by Houndentenor on
The law varies from state to state. I remember when the issue was being debated in Hawaii that over and over the governor referenced allowing cousins to marry as if were illegal in Hawaii. It’s not.
http://www.ncsl.org/issues-research/human-services/state-laws-regarding-marriages-between-first-cousi.aspx
I’m not in favor of cousins marrying. Ewww. But my point is that it is often referenced in arguments against same sex marriage by people too ignorant to know the law.
posted by Tom Scharbach on
But my point is that it is often referenced in arguments against same sex marriage by people too ignorant to know the law.
Well sure. Ignorant are ignorant, and speak freely from their ignorance. We have a retired fire chief in our area, a Tea Party loudmouth, who insists that the opening words of the Constitution are “We the People of the United States, under God …” Who was it that said, “Better I be silent and let people think I am a fool, than speak and prove it …”?
But marriage law, as you say, is not uniform between the states . State marriage laws differ in many respects, too, like age of consent , and whether common law marriage is recognized, as well as degree of relationship. The differences are not trivial.
We’ve lived with the federal system for our country’s entire history, and my view is that we can (and probably should) continue to live with it. We have the Constitution to protect the rights of citizens — us, in this instance — and courts to interpret the Constitution in light of facts and circumstances — marriage equality, in this instance.
It will take a decade, but it will all work out.
posted by Houndentenor on
I do not use marijuana in any form and don’t plan to start legal or not. I drink very rarely. (I can’t drink anywhere near having to sing and I’m almost always within 72 hours of a rehearsal or performance so that rules that out unless I’m on vacation.) I explain all that to preface my question…
Why is alcohol legal while marijuana is criminalized. Yes, I’m aware of the history of drug and alcohol prohibition. Neither was successful but alcohol is more socially acceptable. I understand the rationale for prohibitions against heroin and animal tranquilizers and other drugs on which people could easily overdose. But why is marijuana illegal when it’s not nearly as big a personal or societal problem as alcohol? Is it just politics and public perception? If adults want to smoke marijuana, then why not let them. The laws against it don’t seem to keep anyone from doing it. Is anyone not using marijuana only because it’s illegal? (I’m not counting people who have drug testing for work, since fear of losing your jobs is a real incentive. Given the number of times I have smelled marijuana smoke in various apartment buildings, the fear of arrest doesn’t seem all that great.)
posted by Jorge on
Well, thank you for reminding me I’m right to be a prohibitionist.
Gay marriage and marijuana do not belong in the same discussion. Ever. One is good. The other is bad.
posted by Tom Scharbach on
Well, thank you for reminding me I’m right to be a prohibitionist.
Prohibition didn’t work with alcohol, and it hasn’t put a dent in marijuana use, either. I personally don’t care — I don’t drink or use — but devoting government resources to marijuana prohibition is tossing good money after bad. We could spend it on better things, or just reduce the cost of government.
posted by Houndentenor on
I can certainly understand the arguments for why marijuana is bad for you. I don’t use it myself. But I don’t see why people caught in possession of small amounts need to be incarcerated at public expense so long as there was no potential harm to others (as in driving under the influence). I never get a straight answer to why it has to be made illegal when alcohol has far more serious health risks and is a bigger problem for society. I guess I’m fairly libertarian on social issues. If it’s not hurting anyone else, I don’t see how it’s anyone else’s business, and locking people up for such things is just a waste of taxpayer money. The war on drugs is over 100 years old and what do we have to show for it except a lot of money down the drain.
posted by Jorge on
What you say has no heart in it as to whether or not it is a noble idea. The government has a responsibility to stand for things that are good and discourage things that are bad. How it does so with regard to marijuana and alcohol are things I am not that particular on. But it doesn’t do enough with alcohol, and I have nothing to complain about with marijuana. For example, we could lower the legal driving limit to essentially zero tolerance.
posted by Houndentenor on
Noble ideas? What about practical concerns and individual liberty?
Might I assume from this comment that you also favor Bloomberg’s war on soda and trans fat?
Where is the limit at which the government doesn’t get to micromanage our lives and decide what’s best for us?
posted by Jorge on
Noble ideas? What about practical concerns…
I would take what I could get. I would no more let the practical be the enemy of the good than I would let the perfect. The “practical” should be serving ends that make things better than they would otherwise be.
I do not think it’s a just society we live in that brushes off alcohol, including alcohol-related crimes (mainly drunk driving) with a wink and a nod.
and individual liberty?
The right to swing your fist ends where my face begins.
You want to be a nut in the confines of your own home, so be it. But alcohol and marijuana alike were banned because of the social harms their consumptions and production created. The government has an obligation to be socially responsible, and it is more than appropriate for us to expect each person to be personally responsible for the harms they commit on other people.
That the federal government is spending most of its energy in marijuana-legal states going after mass distributers rather than common patients is only sensible. Practical enough for you?
Might I assume from this comment that you also favor Bloomberg’s war on soda and trans fat?
You know, I’ve changed my mind a couple of times on that soda ban. My main objections to it were that it was arbitrary, ill-conceived, and done rather undemocratically. The reason I came around to supporting it was when I remembered that England used to have a law requiring all able-bodied men to train in the use of its famous longbow daily. So that when it went to war with France, it would win. Harsh, but well within a government’s valid exercise of powers to serve the national interest–it’s better than losing. It seems to me that the soda ban could serve the same purpose of readying its citizens for a more productive and healthy economic output. It is a prime purpose of governments to ensure that their nations will last longer than their enemies’. This cannot always done the nice way.
Where is the limit at which the government doesn’t get to micromanage our lives and decide what’s best for us?
The Constitution, and politics.
posted by Shadow Chaser on
I wasn’t surprised that in Washington State, more voters approved the referendum to decriminalize marijuana than the voters who approved the marriage equality referendum
posted by William on
Yes, the United States has a federal system, as recognised under the Tenth Amendment. But it also guarantees equal protection, as recognised by the Fourteenth Amendment, and in a manner that overrides the decision of the states, ‘No State shall … deny to any person within its jurisdiction the equal protection of the laws.’
So I think the Supreme Court should rule in favour of an equal right for gay and lesbian couples to marry. Probably not in Hollingsworth, as it looks likely to be dismissed on standing or DIGged, but in a few years, when a couple in a state with no marriage or civil unions brings an equal protection case, and where the state AG persists in contesting the case.
I also favour ending prohibition of marijuana, and think that under the Tenth Amendment, the federal government should stay out of states that allow its use. But I don’t see an equal protection issue, so it is a state-by-state issue.
posted by Houndentenor on
Unfortunately for the tenthers, both marijuana and gay marriage are subject to federal as well as state laws. It may be legal to possess a certain quantity of pot in your state but an ATF agent can arrest you under federal law. This is a mess and needs to be sorted out.
posted by Don on
I think these are wonderful issues and frankly, I think the system is working perfectly. Both for gay marriage and marijuana. Not for any particular outcome but because a political process, if properly designed, changes public opinion. I remember saying in 2004 that Bush was doing us a huge favor with the marriage amendments. I do know the arguments that we could be thrown back 50 years because of them. But my point was we are now in every living room and kitchen table in America. Churches would organize against us. Some for us. And tons of people would disassociate with them as a result. People would come out of the closet. Lawyer friends of mine started switching from anti-gay marriage to pro because they never did the thought exercise before.
it is precisely the legal entanglements that are forcing most people to think about the issues and discuss them when they never would have before. gay people are coming out and telling their story and pot smokers are doing the same.
and people are questioning the unquestionable. But all this takes time. and federalism and ballot initiatives and congressional short-circuiting of social change are all coming into play to keep the discussions going until more and more people work through the unimaginable in their minds.
posted by Tom Scharbach on
Good analysis. In a perverse way, we owe the social conservatives a lot.
The anti-marriage amendment fights brought out the “quiet ones” (in John Rechy’s turn of phrase) and got them into the battle for equality. That single factor is probably the most important reason why public opinion has turned in our favor as quickly as it has, and it is why there will be no turning back. I guess it is an example of the law of unintended consequences in action.
The anti-marriage forces find themselves fighting to hang on, even among conservative Christians, and seem to be demoralized, as they should be, having brought the house of lies they built down upon themselves.
Houndentenor noted, in an earlier comment, that the over-the-top claims and rhetoric of the religious right also played a critical role in turning public opinion around. I think that is a point worth keeping in mind. If social conservatives hadn’t gone so far over the edge — that is, if social conservatives had put forth thoughtful and reasonable arguments instead of lies and fear-mongering nonsense — I don’t think that the American people would have turned them off quite as fast as they seem to be doing.
We need to keep in mind, though, that it is going to take us a decade to undo the damage done by the Bush/Rove anti-marriage amendments. It is a high price to pay for a second Bush term in office, considering how it turned out.
posted by Tom Scharbach on
I note, in passing, that Rand Paul indicated that he believes in the state-by-state approach, as well, in an interview with the Christian Broadcasting Network this weekend:
I tend to agree with Paul’s assessment that a state-by-state political effort, without SCOTUS intervention, may well take 25-30 years. I don’t share in his hopes that if the battle can be dragged out that long that “we [that is, Rand Paul and other marriage equality opponents] can still win back the hearts and minds of people“.
posted by Don on
I do not share Rand Paul’s views. I do not wish for a true state-by-state approach. I have no affinity for the 20-30 years that might take. Mostly because of the excessive human carnage that would bring. There will always be backlashes in such social change, but giving bigots their due while they kick, scream and refuse to change their minds is unconscionable.
I’m sure this seems contradictory to my prior post. I don’t see it that way at all. Prior to the anti-marriage amendments and Boies/Olson’s Prop 8 trial, there was no discussion about this because it was simply unthinkable. I saw those moves as beneficial evils that took us out of the shadows (on marriage) and brought the subject to light.
Now that it has been brought to light, it is amazing to see that gay marriage is being embraced by so many so quickly. To have 2 Republican senators for full marriage equality? WTF? You have to ask yourself: how did we get here? So many forces at work. But now that the forces are bringing tremendous pressure to people like Rand Paul, we cannot allow them to simply thread the needle or straddle the fence with modern-day Missouri Compromises.
Especially since the right has no been so incredibly belligerent on compromising on anything. St. Ronnie would be burned at the stake for doing today what he did then.
Only when the hammer comes down hard, and decisively, will the remainder move into the equality column. And even then I see them as only admitting they lost. Not that they were ever wrong in the first place.
posted by Tom Scharbach on
But now that the forces are bringing tremendous pressure to people like Rand Paul, we cannot allow them to simply thread the needle or straddle the fence with modern-day Missouri Compromises.
Rand Paul is a none-too-bright political charlatan, shifting and spinning, pandering to both to the “libertarian” and far-right Christian conservatives. The fact that he is considered presidential timber demonstrates the depths to which the Republican Party has sunk, and not much more.
posted by Tom Scharbach on
It looks like the forces of resistance to equality in the Republican Party are aligning.
Over the weekend, libertarian Republican Ron Paul outlined a state-by-state delaying action, in hopes that “we [that is, Rand Paul and other marriage equality opponents] can still win back the hearts and minds of people“.
Yesterday, Rick Santorum had this to say: ““I’m sure you could go back and read stories, oh, you know, ‘The Republican Party’s going to change. This is the future.’ Obviously, that didn’t happen. I think you’re going to see the same stories written now, and it’s not going to happen. The Republican Party’s not going to change on this issue. In my opinion, it would be suicidal if it did.”
Santorum also said that Americans haven’t carefully thought out what legalizing same-sex marriage would mean for the country. “[It] is not a well thought-out position by the American public.”
So there it is — the genesis of a delaying strategy in hopes that marriage equality can be stalled for a couple of decades, giving the American public will reverse course.
It makes sense of a sort, because it is the only strategy available to anti-marriage proponents like Rand Paul, Rick Santorum and other Republicans entrenched in opposition to equal rights for gays and lesbians. But it won’t work.
posted by TomJeffersonIII on
Yes, Rand Paul (much like his father) is a political charlatan that panders to “libertarians”, far-right Christians and (sometimes) old school “state’s rights” racists.
It amazes me that someone will still label him (or his father) a “libertarian”. I have a few libertarian friends at the University (went to a few of their meetings) and it was just bat-shi# crazy how they were all gaga over Rand Paul.
posted by kosh iii on
The Paul’s are charlatans but many people seem to like him for only some issues and try to ignore the unsavory bits.
For instance, I think we should shut down our Empire: withdraw from Latin America, let the Koreas fight it out; leave the Middle East; Japan and Europe are wealthy and can protect themselves. Put the military/industrial/Israeli complex out of business.
Heed Washington’s non-interventionist advice.
But since his gay stance is repugnant to me as a gay man, I can’t support him no matter how good his other positions might be.