Anybody who watches the trends can see that the tide is turning (maybe already has) on gay marriage, for the reason that Jennifer Rubin identifies -- "because the arguments against gay marriage are no longer persuasive with a significant chunk of the electorate." As more and more states adopt that standard, the pressure will be on the Supreme Court to invoke the Full Faith and Credit Clause of the Constitution to make gay marriage the law of the land. Whether this particular court would go that way is open to debate.
Now comes Texas Gov. Rick Perry, probable candidate for president, with a "let the states choose" approach that can only add to the momentum:
But while Texas has written into its constitution that marriage is defined as being between one man and one woman, he said New York's recent decision to implement same-sex marriage “is New York's prerogative.”
Taking federalism seriously -- especially its foundation of the 10th Amendment -- means accepting the right of states to determine their own course and living with the certainty that some of them will choose paths we wouldn't.
Rubin again:
As I have suggested before, a 10th Amendment approach to gay marriage and abortion is both in keeping with the party's defense of federalism and smart politics. As gay rights moves from the courts to state legislatures and referendums, it will, I would suggest, become increasing difficult for conservatives to decry democratically approved gay marriage laws.
Comments
Excellent point, Leo. I've always felt the states should be free to decide whether murder should be illegal.
Let's see. First degree murder, without aggravating circumstances. New York, 20-25 years; California, 25-life. In Indiana, to get the death penalty, you have to have numerous aggravating circustances in addition to killing someone; in Kentucky, you can be executed for kidnapping even if you don't kill someone; you will never, ever face capital punishment in Wisconsin, no matter what you do.
Where you been?
What Rick Perry fails to point out is that the Texas state constitution also outlaws marriage entirely. Section 32(b) of their constitution says "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."
And he doesn't point out that Texas didn't have those provisions in the state constitution until 2005. The traditional definition of marriage didn't require a man and a woman; a child as young as 10 could marry before WWI.
Texas did not recognize the marriage of slaves, even if their owner(s) consented to the marriage, and didn't even recognize the marriages of freed slaves until 1870.
Leo, I take your point that sentences vary for ordinary first-degree murder from state to state. But I cannot imagine the feds standing idly by if, say, Oklahoma simply made murder legal under any circumstances. But perhaps I used a bad example.
Until the 1860s, slavery was legal in quite a few states (I'd give the specifics, but I hate jumping back and forth between pages - but you get my point). The federal government, first through the Emancipation Proclamation and later through a constitutional amendment, overruled the states.
Prejudice against gays is obviously a great deal less odious than slavery, but it is clearly immoral. No one choses to be gay. I suspect it is just a matter of time before the U.S. Supreme Court overrules the states and outlaws state bans on same-sex marriage.
My only point is that it is easy to shoot down theories of pure Federalism with examples like this. If we allowed complete Federalism, I suspect Mississippi wouldn't have freed its slaves until the 1970s - about the same time the Mormons decided that perhaps black people real do have souls after all.
Sometimes some states just get it horribly wrong, and not everyone can afford to "vote with their feet." I, for example, cannot afford to move out of Indiana, as much as I'd like to. It's hard to sell a house for a fair price, and the equity in my house is my only real money. I worked for newspapers most of my life, so I'm sure you can understand my situation.
Since murder is, by definition, an unlawful killing, you won't find any state ever legalizing murder. You will, however, find states changing the definition of what homicides are considered murder.
Pennsylvania just passed a "castle doctrine" law, for instance, that makes killing trespassers legal under some circumstances. A year ago, those same killings would have been considered murder.
Doesn't that qualify as "making murder legal"?
I don't know anyone who, as a kid, wanted to grow up to be a pedophile. I don't think anyone chooses that deliberately. Is prejudice against pedophiles, even pedophiles who show great self-restraint and never attack a kid, immoral? Is it only a matter of time before the US Supreme Court decides that sex offender registries are banned?
The 10th Amendment was relevant in 1789, but since 1868, it's been overruled by the 14th Amendment, which says "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."