Last week saw the culmination of a movement and a process decades in the making as the Supreme Court handed down its decision in the case of Obergefell v. Hodges, legalizing same-sex marriage throughout the United States. Perhaps no decision by the United States’ highest court has been so widely or fervently celebrated since the Civil Rights Era. Predictably, it has generated outspoken backlash from some conservative commentators and presidential candidates. In harmony with their usual refrain on such issues, they argue that the Supreme Court should have allowed the states to decide the matter individually rather than issuing one overarching decision with which all state governments must now comply. As valid and important a point as that kind of solution may be on some issues and as important as the Ninth and Tenth Amendment are to the health and stability of our federal system, in this case the conservatives are simply wrong, and by clinging too tightly to the states’ rights argument, they are losing sight of the most important political principle of all: the rights of individuals.
The focus of my argument here is not on Obergefell itself or the issue of gay marriage but rather the question of when the federal government has the obligation to decide an issue on behalf of the people rather than deferring to state authority. However, to clear the air and avoid any reading-between-the-lines, I will go ahead and say that I wholeheartedly recognize and believe in the right of same-sex couples to legally marry.
I revere the religious character of marriage, but it is a distinct quality very much separable from the strictly legal institution. Atheists marry, and there is no outcry even among conservatives contending that they should not be permitted to do so. Adherents to every major religion and most of the minor ones recognize marriage, and the laws of the United States recognize legal marriages between them as surely as they do members of Judeo-Christian faiths and denominations. And the contention that marriage is in any way bound to the matter of reproduction is a prima facie insult to those married couples not blessed with the ability to have children of their own—not to mention those in our society who choose to marry past child-bearing age and spend their latter years with someone they love.
In an ideal society, government would not be in the business of licensing marriage (a practice handed down to us from the Progressive Era, its fervor for eugenics, its fear of miscegenation, and its insistence on the role of government in determining who was and was not a suitable candidate for marrying). However, so long as it inserts itself into the process and recognizes marriage between two people, it must do so between any two people who choose to enter such an agreement. Legally speaking, marriage is a contract, and the government should not be in the business of deciding who can and cannot be party to a contract.
Now that that point is in the open, I ask the reader to forget it entirely for the time being, as the case for federal involvement in this issue should not in any way hinge on one’s stance on same-sex marriage. The issue is not one specifically of “marriage equality” but one of individual rights and the responsibility of the federal government to protect those rights from the derelictions of state government as surely as state governments protect them from federal overreach. Unsurprisingly, Republican candidates raced to respond with condemnations of the decisions based on the supreme right of voters to decide such issues and of states to make individual decisions rather than the federal government.
Senator Marco Rubio’s statement, that “[p]eople who disagree with the traditional definition of marriage have the right to change their state laws. That is the right of our people, not the right of the unelected judges or justices of the Supreme Court. This decision short-circuits the political process that has been underway on the state level for years” seems unimaginable if the issue at stake was any other form of contracting. Carly Fiorina’s statement likewise stressed that “responsibility should have remained with the states and voters.” Mike Huckabee’s melodramatic statement characterized the Supreme Court as being “imperial” and likened it to King George III– a colorful response, if not one grounded in the facts of the case. Rick Santorum, along with several other candidates, has stressed the “unelected” nature of the Court, as though that in any way invalidates its decisions. In addition to showing conservatives’ knack for drama when they lose, it also hints dangerously at a preference for elected judiciaries. Finally, Ted Cruz has gone so far as to encourage states to outright defy the ruling of the Supreme Court–a course of action that would be not only doomed but legally and morally wrong. If this were a matter of the federal government trying to violate the bill of rights, that would be one thing; granting marriage certificates equally to heterosexual and homosexual couples is hardly the road to serfdom.
Imagine, if you will, that instead of states refusing to issue marriage contracts to certain individuals they were refusing to recognize business contracts. In addition to the economic catastrophe that this would likely precipitate, it would rightly be recognized—by conservatives especially—as a violation of Americans’ rights. Analogously to Obergefell, let us assume that while a thirty-seven state majority still recognized business contracts, seven banned them outright, five tried to ban them but had their efforts overturned by the state Supreme Courts, and three were considered “legally complicated” gray areas where parties had to proceed at their own risk.
It is unimaginable that such an issue would not be a major centerpiece of Republican campaigns from coast to coast. Presidential candidates would demand immediate action by the sitting president and would race to be the first to claim that, if elected, their first order of business would be to issue an executive order requiring states to recognize the constitutional rights of their citizens. It is fair to say that there would be little to no talk of “states’ rights” to ignore business contracts or of total deference to the democratic process when violations of individual rights are ongoing. Thus, remembering the legal character of marriage as a contract between consenting parties, we must see the “let the states decide” conservatives as being somewhat intellectually and morally hypocritical and shielding it behind today’s (often justified) conservative fervor for state power over federal power.
As advocates of same-sex marriage have understood and as conservatives would no doubt quickly understand if the above hypothetical came true, there is absolutely a place for the federal government to step in when states are refusing to recognize a fundamental right of individuals—in this case, the right to contract. There is certainly a place for states to decide many issues and to engage in a form of competition in governing conditions that can be both productive and instructive. One can disagree with state income taxes but agree that, if they are to exist, having a variety of income tax rates across the states allows for tax competition, and the migration of businesses and individuals from the most abusive to the most fair can allow for positive examples used to support good reforms nationwide. In that case, there is no fundamental at work: a policy is being applied across the board and is in all cases based on the same moral premise with respect to citizens’ rights; the only issue at stake is what specific percentage of income will be demanded.
When the question is whether or not to recognize an important political right at all, however, the federal government has an obligation to involve itself when states refuse to offer proper protections. It is incumbent upon the federal government to establish the principle nationwide that such derelictions will not be tolerated under the Constitution. Conservatives’ emphasis on the importance of federalism and letting states resolve issues for themselves cannot rightly be cast asunder; it undoubtedly has its place in the resolution of important political challenges. It must be remembered at every turn, however, that it is not states but the individuals within them who possess rights and that those rights can just as surely be violated by state governments as federal.
It is an oft-cited line of the Declaration that reads, “Governments are instituted among Men, deriving their just powers from the consent of the governed.” The emphasis in quoting that passage is almost invariably on the question of consent, but its critical essence lies in the distinction of “just powers.” Only those powers that are morally just can ever truly be delegated by the people if we are to resist the tyranny of a majority as expertly as our Founding Fathers resisted that of the crown. And no majority, no matter how large, at a state or federal level, should be left to abrogate the rights of individuals with impunity.