The problem in any kind of politics based on the primacy of
free choice is that
all other considerations can get thrown out of the window.
In this case the issue
of so-called "gay marriage" must take into account what,
these days, is almost
never taken into account, whether or not some things are
objectively wrong,
unhealthy, unhelpful, impose unfair burdens on others, have
detrimental effects
on communities, are anti-religion and anti-moral, and so
forth.
The libertarian argument made in the article takes none of
these considerations
into account on the false premise that "individual rights"
trump everything else.
Granted, individual freedom is a major virtue, we can even
say it deserves first
place in any political system worth having. But it is not,
nor can it ever be,
100% of the story. Objective truth actually counts even
more, since, without it,
individual freedom can be self-destructive, delusional, and
dysfunctional
in countless ways. At what point will libertarian pundits
and leaders finally
grasp this fundamental RC point ?
Billy
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Reason
Gay marriage and the 10th Amendment
Jacob Sullum
| July 14, 2010
Last week a federal judge confounded both sides of the
political spectrum by ruling that the 10th
Amendment requires the federal government to recognize
state-approved gay marriages. Progressives worried that U.S.
District Judge Joseph Tauro's reasoning cast doubt on the
constitutionality of many existing federal programs, while
conservatives worried that it required equal treatment of
same-sex unions.
Since I am one of the few Americans who welcome both of
these outcomes, perhaps you should take my opinion with a
grain of salt. But it seems to me that conservatives are
engaging in the sort of result-oriented constitutional
analysis they so often decry when they shrink from a
consistent application of federalism because it lends
support to a social trend they fear.
The 1996 Defense of Marriage Act
(DOMA), which declared that states need not recognize
same-sex marriages performed in other states, also decreed
that more than 1,000 marriage-related provisions of federal
law would be based on a definition that excluded gay
couples. States that legalized same-sex marriage—such as
Massachusetts, which brought this case—were therefore forced
to contradict their own policies by discriminating against
gay couples in federally subsidized programs.
In determining Medicaid eligibility, for example,
Massachusetts had to count married people of the same sex as
separate individuals rather than a single household. In
operating two state-owned military cemeteries, it had to
turn away spouses of veterans if they happened to be of the
same sex.
By requiring Massachusetts to pretend that gay marriages do
not exist in cases like these, Judge Tauro concluded, the federal
government was impermissibly intruding on family law, "a
quintessential area of state concern." He noted that the
definition of marriage has long been viewed as a power
"reserved to the states" by the 10th Amendment because it is
"not delegated to the United States by the Constitution, nor
prohibited by it to the States."
Tauro also relied on the principle of equal protection in
overturning DOMA's exclusion of gay couples from federal
benefits tied to marriage, having concluded in a related case that such
discrimination fails even the highly deferential "rational
basis" test. Although I've been skeptical of this argument in
the past, I must admit that I am hard pressed to think of a
rational reason for preventing the longtime spouse of a
veteran from being buried alongside him, simply because both
of them are men.
It's true that the people who wrote and ratified the Fifth
and 14th amendments never imagined they were guaranteeing
equal treatment for homosexual couples. But that's because
the very notion of gay marriage would have been
incomprehensible to them. Treating all married couples
equally, without regard to sexual preference, seems like a
straightforward application of equal protection to a
situation the Framers could not have foreseen, just as they
did not foresee television (which is nevertheless protected
by the First Amendment) or wiretaps (which are nevertheless
governed by the Fourth Amendment).
But even conservatives who reject the equal protection
argument should not lightly dismiss the assault on
federalism represented by the attempt to impose a national
definition of marriage on recalcitrant states. "In effect,"
says an especially
well-informed critic of this policy, "DOMA's language
reflects one-way federalism: It protects only those states
that don't want to accept a same-sex marriage granted by
another state. Moreover, the heterosexual definition of
marriage for purposes of federal laws—including immigration,
Social Security survivor rights and veteran's benefits—has
become a de facto club used to limit, if not thwart, the
ability of a state to choose to recognize same-sex unions."
Writing in the Los Angeles Times last year, this
critic declared: "It truly is time to get the federal
government out of the marriage business. In law and policy,
such decisions should be left to the people themselves."
The author of that essay, former Georgia congressman Bob
Barr, knows a thing or two about DOMA. He wrote it.
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