Picture 2

Picture 2

Feb 7, 2013

Gay Marriage and the 10th Ammendment

I support gay marriage as long as it's done by state legislatures and not the courts. I think it requires state legislation to make it less contentious. The Supremes should rule that marriage is a state matter and that the 10th Amendment precludes Federal intrusion, so the Defense of Marriage Act is unconstitutional. However, I don't see how the 14th Amendment would apply in this case, so the Supremes should say it requires action state by state to make it legal. The Federal and state governments should recognize any marriage performed in any other state. I'm a Republican with libertarian tendencies. I don't think the Federal Government belongs in anybody's bedroom.

     I think marriage is a civil contract upon which inheritance is based. This was the position of the Pilgrims in 1620 who landed on Plymouth Rock without a minister to do weddings. Marriage is a legal construct to allow individuals to accept a standard relationship agreement enforced by the state. I don't believe marriage has to involve procreation. Procreation happens very frequently without marriage, and marriage happens very frequently without procreation. I do believe marriage is a states' rights issue. Every state should have the right to make its own laws about who can marry in their state. However, a marriage performed in any one state should be recognized in all states. I do not think that gay marriage is required by the 14th Amendment. In practical terms, it would be a Roe v Wade scale disaster if the Supremes tried to make law by ruling gay marriage is required by the 14th Amendment. It seems obvious that the 14th Amendment is about slavery and race. I don't think gay marriage was ever discussed as a reason for adoption of the Amendment. Finding an abortion penumbra in the constitution as an excuse to legislate from the bench has made the abortion argument much more divisive and prolonged than it would have been if it was left to the state legislatures to work out.  Gay marriage belongs in state legislatures.
      The Civil Rights Act of 1964 was legislated as a result of public support, not the result of the ruling in Brown vs Board of Education. The Roe vs Wade decision has been divisive for years and still is, in my opinion because it was legislated in court and not in the state legislatures. That's why gay marriage should be the legislature's call. The end is usually tainted by the means. If abortion had been worked out state by state, we'd be at the same place we are now with a lot fewer angry people. In the meantime, people can see that the sky won't fall just because gays are married. We can try it out and get used to it gradually. That's the advantage of a federal system. Local decisions can pave the way for more general results.
      Without the Defense of Marriage Act, gay marriages performed in New York, for example, would have to be recognized by all other states and the Federal Government. My wife's cousin got married to his partner in New York. They live in Florida. If DOMA is ruled unconstitutional, then Florida would have to recognize it. Also, they could file joint income tax and get social security survivor benefits. Problem solved without anywhere near the fuss of a 14th Amendment ruling that gay marriage is Constitutionally guaranteed.
      A 10th Amendment ruling against DOMA should get a lot of conservative backing. We love the 10th Amendment.  We want the Feds out of the picture as much as possible.  Consistency requires that we should want DOMA out of the picture as well.