I opposed the Federal Marriage Amendment, because it sought to remove from the states their control over marriage. It would have prevented a state from determining to recognize same-sex marriage, even if its citizens wanted to. I condemned that as a usurption of the states’ role in the federal system. Marriage, I said then, is an issue to be regulated by the states.
In this case, I think the House’s vote is intended to produce a good result: to allow each state to decide the merits of the same-sex marriage issue on its own. Just as I cheerfully grant Massachusetts the power and right to decide yes, I must respect the rights of other states to decide ‘no.’
Of course, all such decisions must be made within the limits of the federal constitution, the supreme law of the land.
When Virginia sought to ignore marriages between blacks and whites, the Supreme Court stepped in to say that such distinctions were forbidden by the federal constitution.
The problem is that thus far, the Supreme Court has not ruled that same-sex marriage is analogous to interracial marriage for the purposes of federal constitutional protection. I do not believe they should – I believe that, consistent with the view I espouse above, it’s a matter for each state to determine.
All that said, I don’t like the idea of the legislature doing an end-run around the courts by withdrawing jurisdiction. On the other hand, the courts are not blameless: when they start playing with “substantive due process” as a means of arrogating to themselves the legislature’s proper function, they should not be surprised when there’s a backlash from the branch of government whose power is being usurped.
In the end, the basic notion of self-governance tells us that we are ruled not by the courts, but by ourselves, as expressed through our democratically-elected leaders. Let’s do away with BOTH the idea that the legislature must explictly decalre subjects off-limits to the courts as well as the odious methods of analysis by which the courts try to become a super-legislature.