Marriage Equality: National Versus States’ Rights

Back in December 2010, President Barack Obama supported the concept of “Civil Unions” for same-sex couples, and while he said his position was still “evolving,” he was not yet on board with full marriage equality.

This “evolving” (devolving?) position seems to contradict a survey bearing then Illinois State Senate Candidate Barack Obama’s signature in 1996 in which he claims that he “favor[s] legalizing same-sex marriages, and would fight efforts to prohibit such marriages.” The administration explains this discrepancy by stating that the survey was “actually filled out by someone else.”

So on June 23, attendees at a Manhattan fundraiser for President Obama by members of the lesbian, gay, bisexual, and transgender (LGBT) community hoped to hear of the President’s continuing “evolution,” but to the disappointment and frustration of many, he remained firm on his previous position.

Earlier in the day, Jay Carney, Obama’s Press Secretary, stated that the President believes that the issue of whether to legalize marriage for same-sex couples should be left to the individual states to decide. He argues that this is a states-rights issue, and that the national government should not intrude by imposing its will on the states.

I argue most emphatically that marriage rights in general, and more specifically, legalization for same-sex couples is indeed a federal governmental issue.

This once again reminds me of the concept of “tyranny of the majority” articulated back in the 1830s by Alexis de Tocqueville, French political scientist and diplomat, who traveled across the United States for nine months between 1831-1832 conducting research for his epic work, Democracy in America. Though he favored US style democracy, he found its major limitation in its stifling of independent thought and independent beliefs. In a country that promoted the notion of “majority rules,” this effectively silenced minoritized peoples. This serves as a crucial point because in a democracy, without specific guarantees of the rights of minoritized peoples, there is danger of domination or tyranny over others whose ideas, values, and social identities are not accepted by the majority.

The founders of this country attempted to provide a mechanism for the protection of minoritized peoples against the tyranny of the dominant group. The checks and balances between the three branches of government — Administrative, Legislative, and Judicial — and the authority of national legislation over the individual states have been seen time and again (though of course not perfectly and not without major adjustments and reversal of policy along the way) to offer some form of protection for the rights and responsibilities of minoritized peoples. If we leave these important issues of social inequality and social justice to majority rule, then many of the evils that have plagued this country throughout its history would continue to this very day.

Though, or course, the issues are different in many ways, take the following cases for example:

If the issue of prohibiting the practice of slavery were not settled in Lincoln’s 1863 Emancipation Proclamation and later codified in the US Constitution, and left to the individual states, I question whether the states would have voluntarily outlawed the practice of slavery, and I believe the practice of legalized slavery would have lasted long after the Civil War in some states.

If the issue of school desegregation were not settled in the 1954 Brown v. Board of Education US Supreme Court decision and later strengthen in the federal Civil Rights Acts of 1964 and 1965, and left to the individual states, I question whether the states would have voluntarily relinquished the practice of racial segregation, and I believe this practice would remain to this very day in some states.

If the issue of prohibiting individuals from different races from engaging in sexual relations (miscegenation) were not settled in 1967 by the US Supreme Court in the case Loving v. Virginia, and left to the individual states, I question whether the states would have voluntarily relinquished the practice of arresting and incarcerating people of different races found engaging in sexual relations, and I believe these arrests and incarcerations would remain to this very day in some states.

If the issue of women’s reproductive rights were not settled in the 1973 US Supreme Court decision Roe v. Wade, and left to the individual states, I believe today women’s rights to control their own bodies would be dependent on their geographic location, thus disqualifying many women from their reproductive freedoms.

Today, I live the Iowa, and our state Supreme Court gave me the choice of marrying a man. If, however, I took this option, and desired to travel or live in my neighboring state of Nebraska, for example, my marriage would be considered null and void in that state due to the current patchwork of differing and often conflicting marriage regulations for same-sex couples between the states.

The rights of same-sex couples to legally marry WILL NOT compel religious institutions to conduct religious marriages if they are opposed. Religious institutions will continue to set their own standards for conducting marriage ceremonies as they always have, without fear of prosecution if they decide that marriage for same-sex couples stands in opposition to their teachings.

The Obama administration has taken some strides in securing rights for LGBT people on the national level by working to secure the repeal of the discriminatory “Don’t Ask, Don’t Tell” military exclusionary law, the passage of a comprehensive hate crimes law, addressing implications of school bullying on LGBT youth under the Department of Education, the appointment of the first transgender person to a federal office, and tracking, documentation, and research through the Department of Health and Human Services on LGBT health issues.

Now is the time for President Obama to “evolve” to the point of endorsing the concept as well as the reality of marriage equality for same-sex couple on the national level.