Friday, July 09, 2010

Marriage equality via state's rights defense

A federal district court in Massachusetts recently ruled that the federal law known as 'the Defense of Marriage Act' [enacted by a Republican Congress & signed by President Bill Clinton] is unconstitutional. The law prohibits the recognition of same-sex marriage or any same-sex union that in any way resembles a marriage at the federal level. The judge in the case ruled that such a law interferes with state's rights.

Generally the "state's rights" argument is used by conservatives. It's been used to justify everything from retaining slavery, enforcing segregation to rejecting participation in health care reform legislation. In this instance, of course, many conservatives are up in arms that their pet federal law which establishes anti-homosexual discrimination nation-wide has had a significant set back. It seems they only like the "state's rights" argument when it benefits their agenda. But then, shameless, naked hypocrisy from the conservative movement is nothing new.

If this verdict is appealed, which it most likely will be, it could make it's way to the Supreme Court which could strike down DOMA once and for all, thought that doesn't seem likely considering the current political persuasion of the court.


I must say, it has been very interesting watching one of the conservative movement's favorite defenses for anything bigoted, fascist, or theocratic being turned against them. And this verdict was certainly good news for the marriage equality front, but I wonder if it could also have some unintended consequences. It appears to me that one could argue the decision reconfirms that states have a right to set marriage standards. And if so, then states can decide whether marriage can be denied to same-sex couples in their state. Perhaps one could also argue that a law recognizing same-sex marriage nationwide would interfere with "state's rights", preventing them from deciding for themselves whether marriage should be exclusive only to opposite-sex couples.

It's difficult to tell just where things will go from here. This ruling will only have significance at this point for states which legally recognize same-sex marriage or do so in the future. It effectively only determined that states, not the federal government should determine the prerequisites for marriage.

Just as when some states enforced anti-miscegenation laws preventing interracial couples from marrying or co-habitating, some 30+ states have laws prohibiting same-sex couples from marrying today. The Supreme Court struck such laws down, rightly so. They could do so again in regards to anti-same-sex marriage laws.

It seems part of the problem here is the so-called "right" for states to determine for themselves whom they can withhold due process & equal protection from. At some point, if our society takes egalitarian principles seriously at all, I wonder if the court needs to rule more broadly that due process & equal protection shouldn't be up for popular vote. Individual civil rights supersede state's rights. And they should apply evenly, nationwide.

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