Sunday, August 8, 2010

Federalism & Same-sex Marriage

If you are interested in the same-sex marriage issue and haven't read Judge Walker's Perry v. Schwarzenegger opinion, you should do so. It is one of many 14th Amendment based decisions about which I have mixed feelings. It is a decision which expands both individual rights (which is good) and the power of the federal government (which is bad).

Below are brief statements of my thoughts about the two major issues in the Perry case.

I believe that same-sex marriage should be just as legal as opposite-sex marriage.

The ideal solution would be to get the government out of the marriage business altogether. "Marriage licenses" are a fairly recent invention with embarrassing origins. It seems a bit absurd to have to get the state's permission to get married, just as it would be absurd to have to get the state's permission to have a child. These things are just far too personal to be subject to government licensing.

Recognizing, though, that the ideal solution isn't likely to be adopted very soon, legalizing same-sex marriage is a minimal reform that is needed. People are being harmed by the state's refusal to extend to them the same basic legal benefits and licensed social status that the state extends to others in substantially similar circumstances. Religious objections and the revulsion that some people feel toward homosexuality do not justify state-directed harm.

Religious organizations and private celebrants should be free to refuse to administer or recognize marriages that they see as objectionable. A minister could decline to officiate at a same-sex wedding just as a minister can now decline to officiate at a wedding in which one of the parties is a divorced person. The state, however, should not discriminate in this way.

I believe that the federal government has no valid role to play in regulating marriage.

There simply isn't anything in the U.S. Constitution giving the federal government any power over marriage. Again, I understand the 14th Amendment arguments, but reject them. That's too complex an issue to fully discuss here, but I might return to it in another post. Most importantly, the expansion of federal power, even when done for the short-term furtherance of individual rights, has the long-term effect of endangering individual rights. A weak central government is, in the long run, better for personal liberty.

If marriage is going to be regulated by government, then it should be regulated by the state or local governments. The federal government should neither ban same-sex marriage nor require states to recognize same-sex marriage.

To the extent that the federal government is involved in marriage (e.g., in the granting of Social Security survivor's benefits), it should recognize marriages that are valid under the laws of the states in which they were performed.

See also: Ted Olson's "The Conservative Case for Gay Marriage." Olson's argument for federal jurisdiction is flimsy, but his observations about the ways in which society would benefit from legalizing same-sex marriage are excellent.


  1. What about reciprocity? When a marriage is conferred in one state, it is recognized by all other states. If a couple marry in one state and move to another, will they still be married? If a couple goes on holiday to another state and something unfortunate happens, will they have the same rights as a married couple if the state they visit does not recognize their marriage? If the Federal government does not assure equal protection for married people in all states, it will leave many subject to arbitrary laws passed by the individual states.



  2. Tim,

    Thanks for your comment. Your points about the problems that couples might encounter when they move or travel from one state to another are all very valid. I think, though, that reciprocal recognition of marriages should be left to the states rather than to the federal government. The federal government has never used the Full Faith and Credit Clause to force one state to recognize a marriage that would be illegal in that state, but which was legally entered into in another state.

    We do have some legal history that allows us to guess what might happen in the situations you describe.

    Prior to the 1967 Loving v. Virginia decision, which invalidated state laws against interracial marriage, couples in such marriages did sometimes face the possibility of their marriages not being recognized in some states when they moved or travelled.

    Marriage between first-cousins is currently legal in about half the states and prohibited in the rest. Those couples can have problems when they move from one state to another.

    Differing state laws limiting the ability to remarry after a divorce have also raised these issues.

    Frequently, though, state courts have recognized out-of-state marriages even when those marriages could not have been entered into in-state.

    Pre-1967, some Southern state courts chose to recognize interracial marriages that were performed out-of-state.

    Two years ago a Louisiana court recognized a first-cousin marriage as valid, even though such marriages are illegal in Louisiana. That marriage had been performed in Iran, but the basic legal reasoning would have been the same even if the marriage had been performed in one of the other states.

    However, given that Louisiana law now clearly states a strong opposition to same-sex marriage, it seems doubtful that Louisiana would recognize an out-of-state same-sex marriage. I think that's wrong and I want Louisiana to change its laws on this subject, but I don't want the federal government to gain more power over this issue.

    I must add that even though I don't think that a Louisiana court would recognize an out-of-state same-sex marriage, state courts should (and probably would be required by the federal government to) recognize SOME of the legal effects of out-of-state same-sex marriages. For example, a spouse shouldn't be able to escape a legal obligation just by moving to another state where his or her marriage would have been illegal. If a state court did refuse to enforce such an obligation, then federal intervention through a Full Faith and Credit action would probably be appropriate.

  3. Here's a NYT article from 2004 which gives some interesting background on reciprocity and state marriage laws:

  4. Do you think you may be confusing marriage and civil union? Marriage is actually a religious ceremony. And not performed for same sex couples because it conflicts with religious beliefs. I think the term civil union should be the keyword and all legal rights should be recognized. But the government should NOT have the right to force a church to marry a same sex couple.

  5. Jane Burt,

    I've used the term "marriage" because that is the term which usually appears in state laws. I don't think that the term that the state uses to describe the state-sanctioned relationship matters, but the state should be consistent. State law should not use "marriage" for opposite-sex couples and "civil union" for same-sex couples. That sort of unjustified discrimination by the state is wrong.

    It would be fine with me if the term "civil union" were used to describe the state-sanctioned legal relationship and if "marriage" were reserved for private or religious use. As I said above, my preference would be for the state to get out of the marriage business completely.

    I agree that the government should never have the right to force a church to marry anyone. Even if the state law continued to use the term "marriage" and even if same-sex marriage were made legal, that would not mean that a church would be required to recognize or administer same-sex marriages.

    I must point out, though, that some religious organizations do sanction same-sex marriages:

  6. Randall, I agree with you on all of the issues except this one and it may be the deciding factor on who my vote goes to.

    I do believe that everyone should have the same benefits and thus should be issued a civil union contract. How can one justify the government being the ones to define what marriage is...which is a religious matter.

    I guess my question here is, if you were in the Senate, would you push to get the government out of marriage or would you push to have same sex marriage recognized?

  7. the only reason the state tacks on the word "marriage" to a legal union is because the male and female has requested that the state put that word on it to identify their gender.. just like the homos would probably want the word "gay" added to their legal union to identify THEIR gender.. (assuming homos are proud of their gender and wouldn't want to get it mixed up with somebody else's).. at least the man and woman is not trying to take over the word "gay" for their union.. fair is fair..

  8. Read your Bible or get one if you don't have one. It describes all God's Laws, not rules, for gay's and marriage. Marriage is not a government, human or religious made act. It is a blessing from God and He will not stand for gay life, much less marriage. Both words are in the Bible and strict commands apply to them. Being gay is an abomination. Man, you all need to have some kind of guidance. The Bible will direct you on everything happening in the Muslim growing World. Just read Ezekiel. Also, get Pastor John Hagee's "Islamic Revolution" DVD. You will be schooled and humbled. Put your Anti-Christan views behind you, get Saved and your eyes will be opened to all the belief's you will be judged on. The "End of the Age" is upon us and "The End of the World" does not exist. The World will be changed not destroyed. The New Heaven will be on Earth in Jerusalem where Jesus will rule for Eternity. Why would any of you, having heard of Heaven and Hell, weigh even a 1% chance of going to Hell. It is real and you all must choose. The only way to Heaven is through Jesus. Please, stop your guessing and read the Laws of God not man. I know it's not for us Christians to judge, but when God says it's wrong I have to agree and support Him. I just became a Libertarian, but I will not vote for Hayes due him denying God and His Laws. Man I love my Louisiana, but hate non-Biblical views and especially non-Biblical morals. Why would any of you deny Christ's gift of Salvation and have your sins cast from you. Why not support Love and Law. You can't have everyone running amuck doing what they want without some type of Government. Can't you see what Free Evil people do? I'm all about minimum Government, but not, no Government. Regulation is needed. People can do what they want, but not to the extent of having no morals. Jees, I can't believe everywhere I turn so many people are lost. In Jesus Name may you all be enlightened!