Sunday, April 07, 2013

Between Equality and Condemnation There Lies "States' Rights"

The Defense of Marriage Act (DOMA) prohibits the federal government from recognizing same-sex marriages even if they are allowed in certain states. Currently, there is widespread prediction that the Supreme Court will overturn DOMA in its upcoming ruling in the case of United States v. Windsor. This prediction is based on comments made by swing-Justice Anthony Kennedy in oral arguments on the case. According to The Hill, Kennedy, "asked openly whether the federal government should be playing any role in regulating marriage, arguing that it infringed on states’ rights to define marriage."

If the Supreme Court overturns DOMA, it will be doing the right thing. But there's also a political motivation for a conservative court to lend a hand to a Republican party increasingly uncomfortable with its own "no gay marriage anywhere ever" policy. By making it an issue of "states rights," the Court makes it a lot easier for Republicans to pander to different audiences. Republican politicians are under a lot of pressure from their base not to move to the left on LGBT issues. As Sean Sullivan of the Washington Post points out, most Republicans, "don’t think same-sex marriage should be allowed, which explains the politics of why the GOP hasn’t moved swiftly to embrace it the way Democrats have. Fifty-nine percent of Republicans oppose allowing gay couples to marry, compared to just 34 percent who support it." On the other hand, Republicans politicians don't want to alienate the 58 percent of Americans who now believe it should be legal for same-sex couples to marry. With DOMA out of the way, Republicans leaders will then be free to say, "I'm against gay marriage, but if the people of some states want it, that's ok too. I support states' rights."

Sounds reasonable doesn't it? Well, not really. Stop for a minute and think how ridiculous a position this really is. Let's take a look at where President Obama stands on the issue of marriage equality. In 2008, Obama was on the record as being against marriage equality. In 2012 however, he shifted his position to say that he is personally in favor of marriage equality, while at the same time acknowledging, "states’ rights" to define marriage as they saw fit.

Jim Neal of the Daily Beast wrote a good summary of what's wrong with the President's stance:

"To a lot of us, that example of a state’s right tasted a lot like Jim Crow. I imagine there were many interracial couples who felt similarly when the president was born in 1961: then, 21 states outlawed interracial marriage—prohibiting the marriage of Mr. Obama's own parents.
Obama's nuanced acceptance of marriage equality falls short of the sort of unambiguous weight that President Johnson threw behind expanding federal civil rights  legislation that gutted the states' abilities to limit the voting rights of black Americans. LBJ declared outright war on the constitutional primacy of states’ rights over equality. And he won.

Obama taught constitutional law at the University of Chicago for the 12 years prior to his election to the Senate in 2004. So he is no doubt familiar with the landmark 1967 ruling in which all nine Supreme Court Justices voted to strike a blow at states’ rights' in those 17 states that still banned marriages between people of color and white people. In its ruling, the court stated: “The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state."

I agree completely. If the President believes that the Fourteenth Amendment guarantees the right to marriage equality for LGBT persons, he should say so. If he doesn't believe it, he should explain why.

Moreover, the idea that major civil rights issues should be decided in this country on a state-by-state basis has never worked and makes no sense. The Declaration of Independence
states that everyone has, "certain unalienable Rights" that no government authority can legislate against. All civil rights must be declared to be unalienable. It is ridiculous to take a position that says, "I support allowing everyone to marry the partner of their choice, but if a narrow majority of Alabamans disagrees, they can prohibit marriage equality, because marriage equality is a right, but not the same kind of right as free speech."

Whatever their motivations, public officials would be wise to get on the right side of history and back marriage equality as the right of every person, and the sooner the better. If not, they're going to look as silly as the plurality of Mississippi Republicans who still believe that people should not be able to marry if they have slightly different skin tones.