I’m not a student of law (so please be kind in your responses), but I just had a thought and wonder what Dopers think.
I’ve heard people speak of “state’s rights” when discussing same sex marriage. I heard someone actually say, “if they want to be married, they need to live somewhere else”. This sentiment reminds me of the “Jim Crow” law advocates who used the same argument and I wonder why the Civil Rights Act doesn’t cover people who love people of the same gender as themselves. (since the word “sex” is used in part of the original proposal)
wiki: Thomas Jefferson wrote, “a free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.”
My interpretaton of Jefferson’s words is that if people are following their natural instinct, they are indeed following the laws of nature.
Why do state’s rights prevail in certain circumstances and not in others?
Because they are convenient for the right wing in some cases, and not others. “State’s rights” prevails for things like SSM bans; but not for things like medicinal marijuana or assisted suicide.
States Rights is the best way to cover this. Of course we are generally ruled by ideologues who are not ok with this arrangement. They want total victory or nothing at all. It’s tribalism writ large, and the same impulse drives both sides of the debate as drives tribal violence in Africa. Of course everyone wants peace but only on their terms. Not halfway solution like States Rights can stop the tyranny of the majority.
So instead of people being able to be married in Mass, New York or California, they can’t be married anywhere, and the Federal Government forces states to enact specific speed limits, and steps on California’s right to allow Medical Marijuana.
Keep in mind that this is the same Thomas Jefferson who supported Virginia laws against miscegenation, forcing freed blacks out of the state, and forcing the white mothers of mulatto children out of the state.
Source: Finkelman, Paul. Slavery and the Founders. 2nd ed. New York: Sharp, Inc., 2001.
Odesio
Whether from the Right or the Left “States’ Rights” are dependent on the circumstance.
Can I get my way implemented at a Federal level? If yes then States’ Rights do not apply. If no then they do, as getting things my way in individual states is better than nothing.
There is no consistent application of States’ Rights even possible.
BTW your claim that “if people are following their natural instinct, they are indeed following the laws of nature” may be true or not (and I think not), but it does not either way follow that following your natural instincts is therefore part of your rights, even if you accept Jefferson’s assertion that rights are nature-given. Society and its rules require us to constrain our natural instincts constantly. It is not my right to grab food from my neighbor because I am hungry even though that would be my natural instinct, nor to respond violently to offenses, etc. Society requires both axiomatically accepted rights and constraints upon behaviors in order to exist. The debate is never that a balance must be achieved, but where that balance is set and by whom and at what level of societal organization. And of course how the balance once decided upon is enforced. And potentially modified.
That would probably require a Constitutional amendment and that takes massive amounts of effort and years to pass even ignoring the fact that it would never pass in the near future. That is why it is better to focus on the individual states.
Which will also be an ongoing slog that will only win a minority of states and those slowly. Which why in the meantime first focusing energy on strong civil union legislation at a federal level makes sense. And use the fact that society breakdown does not ensue to help breakdown resistance to more comprehensive fixes at one or the other of those other levels.
Of course, the same logic applies in reverse: they are convenient for the left wing for medical marijuana or assisted suicide, but not for same-sex marriage.
In fact, both sides are hypocritical on this issue; the right wing more so than the left. You’re exactly correct to point out that the vaunted respect from the right-wing for federalism vanishes when the issue is medical marijuana, an issue that should be squarely in the states’ corner. I’m no fan of medical marijuana, mind you, but a plain reading of the Constitution doesn’t give Congress the power to regulate marijuana grown in-state for in-state consumption.
(Actually, of course, thanks to Wickard v. Filburn, it does, but it shouldn’t.)
Not quite, since the left doesn’t even pretend to care about “states rights”. And my main point is that the federal government only lets the states get away with “state’s rights” arguments when it’s a right wing law being defended.
I think this is a classic states’ rights issue. I see nothing in the U.S. Constitution that compels states to permit or restrict SSM (or traditional marriage, for that matter), though SC decisions have detected all kinds of “Federal rights” not evident in the actual, you know, words of the document. It’s up to the states, whatever any one of us would prefer.
I do agree that states’ rights are applied very inconsistently, for no reason other than many people care only about what they’d prefer to be the law of the land, process and rules be damned.
Since I realize I may not have been clear enough about what I meant :
The left isn’t being hypocritical, since it doesn’t pretend to care about state’s rights in the first place. The right IS being hypocritical, because it does pretend.
A related question: is there, as it seems to me, a compelling case that, just as Loving v. Virginia was decided on fourteenth amendment grounds, same-sex marriage could be decided on fourteenth amendment grounds?
I’ve been reading a little about it. Part of what doomed Virginia’s anti-miscegenation laws was that they applied only to marriages in which one party was white: the SC said this proved that their clear goal was the maintaining of white supremacy, and that the state failed to show this was a worthy state goal. Similarly, claims that marriage serves to protect the raising of children can be rebutted by pointing out that infertile straight couples can get married, that these laws only prevent marriages by unmarried consenting adults when the parties are the same sex (fertility not being an issue), and that the clear goal is the maintaining of straight supremacy, and that this is not a valid state goal.
This isn’t quite right. The left, of which I am a card carrying member (ha-ha, I don’t really have a card) doesn’t use the phrase “states rights” because our interpretation of federalism doesn’t involve any government having rights vis-a-vis people, but rather powers to conduct legitimate government purposes. The federal government is limited in power to those enumerated in the constitution and states having all the other “usual” government powers. Liberals view the people as sovereign.
We do believe that individual rights can sometimes be better vindicated by the states. Such as free speech and the Pruneyard decisions in the US and Cal Supreme Courts.
Yes, but that’s a tactical position, not a matter of principle. The left can support individual states making the decision in one case, and support the federal government in another without hypocrisy, because there’s no claim that they are supporting something because of “State’s rights” in the first place. The declared goal is civil and individual rights, not state’s rights.
And it matters because I was responding to Bricker’s claim that the left was hypocritical as well on this issue, before you ask.
I think that will happen, but not for decades. When that happens same-sex marriage will have been legalized in the majority of states. There’ll probally be an intermediate period where states can forbid same-sex marriages being performed within their borders, but must recognized out-of-sex same-state marriages.