May 10, 2012

Is there a such thing as forcing states to recognize gay marriage and all the while preserving states' rights?

Only if you believe in contradictions, or perhaps live in the world of Alice in Wonderland.

Yes, President Obama finally let the nation in on secret we already knew: He supports gay marriage. "For me personally," Obama told ABC News -- a day after North Carolina voted to ban gay marriage, “it is important for me to go ahead and affirm that I think same sex couples should be able to get married." (Well, yes, everything you believe Mr. President, you "personally" believe.)

The president stressed that this is a personal position, and that he still supports the concept of states deciding the issue on their own. But he said he’s confident that more Americans will grow comfortable with gays and lesbians getting married, citing his own daughters’ comfort with the concept.

Despite his evolution on the matter, Obama contends that he still supports states’ right to decide the issue. So perhaps one day someone covering the White House can ask Jay Carney or the president why gay marriage deserves special consideration? Even Adam Sewer at the hopelessly left-wing Mother Jones correctly notes: "Obama has endorsed marriage equality federalism—not the notion that marriage for gays and lesbians is a fundamental right guaranteed by the Constitution that can never be taken away."

Which begs an obvious question: If Obama has endorsed federalism and believes that states have the right to define marriage, then why doesn't he support the ability of states to extricate themselves from Obamacare? Why don't states have the right to dictate their immigration laws? And does he “personally” believe that states should be able decide the issue of abortion? Roe v. Wade exists, but so does the Defense of Marriage Act.

We might find a clue to his thinking in this 2009 the New York Times piece, "Obama Seems to Be Open to a Broader Role for States." In it we learn of a new theory called "progressive federalism." This is how it works: the president allows "California and other states to set their own limits on greenhouse gases from cars and trucks” because, presumably, he agrees with the policies that are being implemented and there is no political price to pay. But when your state passes an immigration law that the administration disapproves of, well, the Justice Department sues. Progressive federalism. 

Whatever you think of gay marriage -- and I've long taken the position that government should get out of the marriage business altogether -- if federalism can apply here, why not elsewhere?

The truth of the matter is that federalism is only before the voters until they vote. Then, Obama puts it back in the trash can. Come November 7th, should he win the election, he will begin his full-throated effort to strike down 30 states' amendments that uphold traditional marriage as between one-man and one-woman.

What we have witnessed in the last fifteen years has now come to fruition with President Obama's "personal" endorsement of gay marriage.

Now, the President is getting credit, even from some critics, for finally being honest and consistent in his position on same-sex marriage now that he has announced his support for it. But he is still being neither honest nor consistent. And his dishonesty is not merely a matter of pretending that he has truly changed his mind about marriage, rather than about the politics of marriage.

His claim that he believes that states should decide marriage policy is also impossible to credit. One of the purposes of the federal Defense of Marriage Act was to block this scenario: A same-sex couple that resides in a state that does not recognize same-sex unions as marriages goes to a state that does so recognize them, gets married there, returns home, sues in federal court to make the home state recognize the “marriage,” and prevails. Obama has long favored the repeal of the act. He does not truly want states to be able to continue to define marriage as the union of a man and a woman.

And really, why should he, given his premises? Does anyone doubt that he believes that the marriage laws of most states are not just wrong but unjust? His spokesmen have repeatedly said as much when registering his opposition to states’ attempts to undo judicial decisions to impose same-sex marriage. If these marriage laws amount to unjust discrimination against certain persons, then it follows that states have no right to enforce them. If Obama’s appointees to the Supreme Court join a majority that requires all states to recognize same-sex marriages, does anyone think that he will do anything but applaud? There is no reason to believe that Obama’s long-advertised “evolution” on marriage is now complete.

All people, whatever their sexual orientation, have equal dignity, worth, and basic rights, by virtue of being human beings. This premise does not entail the conclusion that the marriage laws should be changed. The only good reason to have marriage laws in the first place — to have the state recognize a class of relationships called “marriage” out of all the possible strong bonds that adults can form — is to link erotic desire to the upbringing of the children it can produce.

We have already gone too far, in both law and culture, in weakening the link between marriage and procreation. To break it altogether would make the institution of marriage unintelligible. What possible governmental interest is there in encouraging long-term commitments with a sexual element, just as such? What reason is there to exclude from recognition caring long-term relationships without such an element?

Many people who support same-sex marriage sincerely believe that they are merely expanding an institution to a class of people who have been excluded from it rather than redefining it. But this view is simply mistaken. We will not make our society more civilized by detaching one of our central institutions from its civilizing task.

We believe that the Constitution of the United States speaks for itself. There is no need to rewrite, change or reinterpret it to suit the fancies of special interest groups or protected classes.