The Washington Post‘s Fred Hiatt writes that the gulf between blue America and red America has been deepening since Obama became president, and neither side is shamed by its hypocrisy. For instance:
One result is that purported adherence to states’ rights has become more situational than ever. Red-staters want to ignore Roe v. Wade while insisting that the most permissive state’s concealed-carry law be accepted across the country. Advocates of gay marriage find themselves simultaneously against the federal Defense of Marriage Act because it doesn’t recognize Massachusetts’s primacy in allowing same-sex marriage and against California’s ban on same-sex marriage because it violates the U.S. Constitution. …
Unfortunately, across a range of issues state diversity won’t work very well. A ban on assault weapons in Maryland is of limited use if you can buy a gun in Virginia. A married gay couple with children could risk custody if they move from Massachusetts to Mississippi. But with Americans living in two separate worlds, that may be the reality we face for some time to come.
Mix and match: At its best, federalism allows us to see what works (less onerous business regulation, less confiscatory taxation, school choice, public employee benefits on par with private-sector workers, marriage equality) and what doesn’t. But overcoming the backward-focused paradigm of a left/right divide that separates social and economic freedom into opposing camps remains the ongoing challenge of our time.
More. An optimistic note on gays and guns, from Instapundit Glenn Reynolds.
8 Comments for “Divided Nation”
posted by Tom Scharbach on
Advocates of gay marriage find themselves simultaneously against the federal Defense of Marriage Act because it doesn’t recognize Massachusetts’s primacy in allowing same-sex marriage and against California’s ban on same-sex marriage because it violates the U.S. Constitution. …
Okay, Stephen, Constitutional Law 101:
(1) The federal government has “enumerated powers” under our Constitution; all powers not enumerated are “reserved to the states, or to the people”.
(2) Marriage is a “reserved power”, historically, reserved to the states.
(3) The federal Constitution has embedded within it, certain protections and guarantees relating to the rights of citizens.
(4) The rights of citizens under the federal Constitution are primary; neither federal law not state law can abrogate or violate the protections and guarantees of the federal Constitution.
The federalist constitutional argument against Section 3 of DOMA is, in a nutshell, that Section 3 of DOMA violates the “reserved powers” clause of the federal Constitution because the law usurps a power reserved to the states. (1), (2) Other constitutional arguments have been advanced, as well, asserting that DOMA violates the constitutional protections and guarantees to citizens (3), (4), but those are not relevant to the federalist argument.
The federalist constitutional argument against Prop8 is that the state constitutional amendment, although an exercise of a reserved power, violates the protections and guarantees to citizens under the federal Constitution (3),(4). The argument that the exercise of a reserved power in a specific circumstance violates the protections and guarantees of the federal constitution is not — repeat not — an argument that the power is not reserved.
It is inevitable, I suppose, that advocates of marriage equality who do not understand basic constitutional principles of federalism might not understand that both arguments (DOMA and Prop8) recognize the reserved power, but the fact is, both do.
I can’t claim to have read every brief submitted in the two cases, but I have read all the major briefs. Nobody argues that marriage is not a reserved power in either case.
The idea that the proponents of marriage equality are arguing for federalism in the DOMA case and against federalism in the Prop8 case is a false dichotomy. The fact is that both cases are grounded in the division between federal and state power. I understand that laymen who don’t have a grounding in constitutional law might think that the two are in conflict, but that doesn’t make it true.
As to your charge that the differing arguments made concerning the same constitutional principle in the two cases is “hypocrisy” — well, that is your lookout and illuminates that you don’t understand federalism or the nature of the cases and constitutional arguments involved.
posted by Mike in Houston on
The other missing piece here – not argued in the DOMA case, but highly relevant – is the clause which allows states to opt out of the Full Faith & Credit clause of the Constitution.
Even if you argue that (somehow) Congress has the power (perhaps through Commerce) to interject itself into reciprocal recognition of civil marriages across state lines, clearly DOMA applies this exemption too narrowly (states can only use DOMA against gay families) to pass the equal protection smell test.
Should the Court strike down DOMA for federal taxation purposes, this will be he next logical domino to fall – wherein there is de facto if not de jure marriage equality across state lines even in those states (like mine) where the paperwork can’t originate – at least for those that can afford to travel to a marriage equality state.
posted by Tom Scharbach on
I agree with you on the DOMA smell test, Mike (DOMA Section 2 adds nothing to the existing “public policy” exemption, and the “gays only” nature of the Section 2 exemption suggests that the sole motivation was animus).
But I suspect that state-by-state “public policy” exemptions to Full Faith & Credit will stand in the 20 states that have passed an amendment banning both marriage equality and marriage-equivalent civil unions. It is hard to argue that those states have not evidenced a “public policy” objection to marriage equality, similar to the “public policy” objection to first-cousin marriage or common law marriage in those states that ban those marriages.
I’m not so sure whether the “public policy” exemption will stand in the 10 states that ban marriage only, but permit civil unions. How can a state argue that it has a “public policy” objection to marriage equality when it allows civil unions granting all of the rights and responsibilities of marriage?
It is an interesting constitutional question, and I’ll be curious to see how it works out.
posted by Mike in Houston on
And yet none of those 20 states seemingly object to children as young as 12 becoming brides or in some cases 1st cousins marrying — in other states. No legal impediments or moral approbation.
posted by Houndentenor on
Yes, both parties are hypocrites when it comes to both the 9th and 10th Amendments. (Sometimes the others as well.)
Meanwhile ALL FIVE GOP state senators in RI pledged to vote for the gay marriage bill. That’s HUGE! That’s progress? Anyone have the scoop on how that happened? (Not speculation, just the true story, thanks.)
posted by Tom Scharbach on
It is enormous, particularly since the remaining opposition to marriage equality in Rhode Island comes from the Democratic Senate leadership, particularly Paiva Weed, and Roman Catholic Bishop Thomas Tobin, who has pulled out all the stops in his campaign to influence legislators in heavily Catholic districts.
I don’t have reason to speculate. I’m content to take the Republican Senators at their word:
Seems straightforward to me, and food for thought for Republicans nationwide.
posted by Tom Scharbach on
The Washington Post has a less hostile (and probably more nuanced) view of Pavia Weed than I do.
Whatever the deal is with her nonsense, if marriage doesn’t make it in the Senate, the blame will lie at the feet of Democratic legislators in that state, cowed by the Catholic Church.
Good on you, the Rhode Island Five.
posted by tomjeffersonIII on
I MIGHT be more willing to buy into the ‘let the states decide everything and let the cards fall where they may’ argument if their was — at least a commitment to have free and fair elections in each state.