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Yesterday, one of my Facebook friends wrote a detailed response to my post on the Supreme Court’s marriage equality decision that focused on some of the main Constitutional issues raised. I just replied on Facebook and then realized that it’s a subject worthy of a follow-on piece.

My critic made the following arguments:

Whether or not a judicial decree brings temporary delight to one group or another is not an adequate criterion for supporting the action. While many do not see what is behind the curtain, the real issue involves the relationship between government and the governed. The Supreme Court has taken it upon itself to bring an end to self-government, and the sovereignty of the states in one rogue action. The Constitution grants to no part of the Federal Government any power to redefine marriage as understood for thousands of years. Worse yet, many of the state laws were supported via referendums. 

“The Supreme Court has fashioned itself to be a politburo. Now we will see if any part of government or society has the gumption to tell them to go jump in a lake.”

Here’s my position:

Without trying to put words in your mouth, it sounds like you’re making the states’ rights argument. As I mentioned in my post, I’m not a lawyer, and its thrust was not Constitutional. But obviously, the issue is critical, so here’s why I find this objection weak.

First, the states are manifestly not sovereign political entities. They are members of a political union whose supreme law is a federal Constitution. The sine qua non of sovereignty is the absence of any higher recognized authority. Second, what is legitimately left of the states right issue flows from the Constitution’s reserve clause, the popular name for the 10th Amendment. It holds ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’

“This amendment has been long and heatedly debated. But there can be no doubt that it does not say that everything not included among the federal government’s responsibilities is automatically and for all time the purview of the states. And it certainly doesn’t specify that the regulation of marriage is some special province of the states – or any level of government. What it does specify is that any powers assumed by the states need to conform to provisions of the Constitution.

One of these, of course, is equal protection under the law. So whether marriage regulation is an eternal right of the states or not (and again, I see nothing in the Constitution indicating this), there is no legitimate basis for arguing that marriage can be regulated in ways that discriminate on the basis of sexual preference.

And as for the referenda point, “the people” don’t have the right to put in place policies that violate Constitutional norms, either. Regarding your point about longstanding notions of marriage, my post did point out that for thousands of years before current traditional marriage emerged, the institution took many different forms. And since no one has a crystal ball revealing what it will look like in the far future, what’s the case for making policy or law or interpreting the Constitution based on traditional marriage’s continued durability?

Finally, as I made clear at the start of the post, I believe current traditional marriage is the best from the crucial child-rearing standpoint (all else equal, which it rarely is). But as I also made clear, policy-making can’t be about my own individual preference, or anyone else’s. And that goes double for interpreting the Constitution.”

Since I’m hardly the last word on these matters, I’ll be eager to see what further discussion these posts generate.  But a national right to marriage equality has now been established, and to me it looks solidly grounded not only in good – and necessary – public policymaking principles, but in good – and necessary – Constitutional interpretation.

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