May 15, 2012
President Obama, while voicing his personal approval of gay marriage, has also stated that the legality of gay marriage should be left to the individual states. This is not a politically motivated stand, as some might assert, but an expression of his belief that the federal government should not intervene in state decisions. He has expressed this view before in stating that the Defense of Marriage Act –which states that marriage is the legal union between one man and one woman -- is unconstitutional. In Constitutional lingo, President Obama takes the position that marriage (or by implication gay marriage) is not a ‘fundamental’ right and thus the power to define marriage and marriage rights fall to the states and not the federal government.
Lest we forget, the Tenth Amendment reserves all powers to that states that are not expressly denied to them or which are expressively given to the United States. Ultimately the Supreme Court justices draw, and often redraw the line between federal and state rights when it comes to individual liberties. For example, a few years back the Court decided that it would not second guess Connecticut’s (or any state’s) view regarding what justified public purpose when applying the right of eminent domain. (This decision resulted in a spate of state sponsored laws to clarify their respective positions on the matter.) Similarly, for the longest time the Court side-stepped applying the second amendment to state actions.
Over time it has come to be understood that only a citizen’s ‘fundamental rights’ demanded federal protection –and by implication- federal intervention. Many of those in favor of gay marriage speak of future federal judicial actions that will effectively mitigate, if not eliminate, state prohibitions against same sex marriage and civil unions. To my way of thinking we, as a society, are a long way from achieving a sufficient consensus on the fundamental right of an individual to marry someone of the same sex. It’s hard to equate, for example, the right to marry anyone you choose to the right to be told why you are being arrested or the right to worship as you please. President Obama’s view that defining legal relationships are best left to the individual states rests on sound legal reasoning as well as recognition of the wide split among the states on this matter.
I would expect the Supreme Court to steer clear of this issue for some time, in large measure by finding that this is a matter best decided by the states themselves. It won’t be the first time this has happened. Those counting on the Supreme Court to ‘right the wrongs’ of State laws and Constitutional referenda may have a long wait on their hands.