Mentioning the issue in my last post reminded me that I haven’t put out an update on this issue in a while. This one will be a bit longer than normal. I considered breaking it into two posts, but didn't.
Continuing a string of gay rights victories, Maryland recently legalized gay marriage. It is the eighth state to do so (Connecticut, Massachusetts, New York, New Hampshire, Vermont, Iowa, Washington state, and Washington DC already allow it). As a side note, New Hampshire also recently defeated a bill in its legislature to overturn its gay marriage law, so that’s another win.
Like Washington state, there is an effort in Maryland to put gay marriage up for popular referendum in the fall. In addition, Maine is expected to have gay marriage on the ballot in the fall. Minnesota and North Carolina are still expected to have gay marriage bans on the ballot in the fall, as well. California remains a hotbed due to the recent overturn of Proposition 8, as does the federal level (DOMA).
To this point, I’ve been content to leave aside the question of what is the most appropriate avenue for getting gay marriage legalized. I want to look at that here. There are court rulings, the legislative process, and popular referendum at the state level, along with DOMA, the legislative process, and potentially the Supreme Court on the federal level. I’ve never looked into the possibility of a popular referendum on the federal level, but I suppose it is possible in theory.
Here’s the reality. In the United States, the rights of the minority are not subject to the will of the majority. It is one of the most fundamental underpinnings of the Constitution. We see it repeatedly throughout the document, like the 14th Amendment as I’ve laid out before. This very basic tenet of America is the reason popular referendum, be it on the state or federal level, is simply not an appropriate way to address the matter.
So, with popular referendum out, we are left with the legal or legislative process. They are simultaneously somewhat parallel, yet related, paths to the same end. The courts could (and should) keep overturning gay marriage bans and upholding gay marriage legalization based on the Constitution, but they are limited by the cases brought before them. The legislature, on the other hand, can write and pass a bill at any time (assuming the will is there, of course). Both are appropriate paths to legalizing gay marriage.
We’re also left with the question of whether state-level or national-level action is appropriate. This is kind of tricky. On one hand, we have the states’ rights question, which I’ll address below. On the other hand, even if we break away from the 14th Amendment or legal rights issue, we see two additional layers.
First, it’s my view that individual freedom is the ultimate deciding factor. Basically, it’s the, “My rights end at your face,” line of thought. I would pose the question to opponents how their rights are infringed upon by allowing gay marriage (it’s very obvious the rights of gay people have been infringed upon by being denied the right to marry). This is actually a very significant question and I see no valid answer provided religious organizations are not forced against their will to marry gay people. So, the rights of gay people are being restricted and ending that infringement would not impact everyone else. This is an important underpinning to the gay marriage argument, and with that, we can move on to the next step.
The Constitution is the supreme law of the land and was written with the intent not to limit the rights of the individual, but to limit the power of the government to limit individual freedom. Simply put, if the local and state governments are unwilling to take the appropriate action to ensure the rights of the individual, then the federal government is obligated to intervene to that end. The inverse also applies, meaning that the state and local governments must also take appropriate action to ensure individual rights should the federal government attempt to violate them. In other words, the rights of the individual trump the rights of the government on all levels. The Civil Rights movement is a great historical example of the concept. This can get very philosophical very quickly and we can branch off into a lot of other questions, but I want to stay on topic here and move onto the next facet of the federal versus state action discussion.
Second, as I’ve written before, a marriage license issued by one state must be recognized by all other states per federal law. This is often framed in terms of age. Suppose State A’s legal age for marriage is 16 and State B’s is 18. If a pair of 16-year olds get married in A and go to B before turning 18, B still must recognize their marriage. The same logic applies to marriage licenses for gay couples. Alabama, for example, acts illegally when they refuse to recognize the legitimacy of marriage licenses issued to gay couples by another state (to my knowledge, Alabama is the only state to do this). Interstate issues like that often ultimately require federal-level arbitration.
The bottom line here is that, between the 14th Amendment and interstate issues, federal-level resolution will ultimately be necessary to at least some degree unless all 50 states legalize gay marriage on their own. I think DOMA would have to be overturned somehow (legislative process or Supreme Court ruling) because, as I’ve detailed before, a large number of states defer to DOMA. Additionally, federal action that either explicitly disallows state-level bans on gay marriage and/or legalizes gay marriage throughout the USA may be necessary.
What about a Constitutional amendment? It would be pointless because it would be entirely redundant to the 14th Amendment. We’ve seen this before. Feminists were agitating for a similar amendment for women a few decades ago. Back then, the amendment ultimately failed to gain traction due to the redundancy logic. A similar amendment for gay marriage would fail in the same way for the same reason.
Note the absence of the executive branch. Though it can serve as a bully pulpit, I don’t view executive action, either by a governor or a president, as a viable or legal path to legalization. The executive branch lacks the power to do this unilaterally, though this hasn’t stopped them from trying (and often succeeding) to stretch/abuse their power in many other areas (also known as the imperial presidency). Indeed, the executive branch on either level can be completely locked out from the process. Legislatures can often overturn an executive veto with a 2/3 majority in both houses, the judicial branch is largely independent of the executive branch, and popular referendum doesn’t involve the executive branch at all. The executive branch also has no place in the amendment process of the Constitution.
All that said, I’m a pragmatist on the matter and I want to see it legalized as widely as possible as quickly as possible. The state legislative process is probably the best way to go on the offensive (as long of a grind as it is to get through 40+ more states), whereas the state legal process can be used more for both offense and defense (bearing in mind the limitations imposed by what cases face the courts).
Given the 0 for 31 record gay marriage supporters have in state popular referendum, I have a different take there. Principle and strategic disadvantage make popular referendum a bad place to be. Obviously, playing defense there to counter bans is vital, but it’s not the place to play offense. Victories here are still essential, especially on defense. Going on offense in Maine is risky only in the sense that the odds of success aren’t favorable based on history, but there is nothing to lose besides resources and there is everything to gain because another state would legalize gay marriage and the momentum of a first popular referendum win would be very powerful.
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