Professor Warren Blumenfeld believes the Feds should step in and that history shows why.
When the Supreme Court decided on Friday, December 7, 2012 to rule on the constitutionality of California’s Proposition 8 case, Hollingsworth v. Perry, and the so-called national “Defense of Marriage Act” (DOMA), I was encouraged that now a ruling might come by June 2013 to finally apply the Constitution of the United States to same-sex couples as it does to different-sex marriage partners.
Marriage equality for same-sex couples gained momentum recently as a federal district court ruled unconstitutional the anti-equality California Proposition 8 passed by voters in 2008, and the electorate in the states of Washington and Maryland passed ballot measures legalizing marriage for same-sex couples.
A number of politicians assert that the issue of marriage for same-sex couples must be left to the individual state legislatures or to the voters to decide because this falls under the category of states-rights or “majority rule,” and that the national government should not intrude by imposing its will on the states in this matter.
So then, should the civil and human rights of minoritized peoples be placed up for a vote or left to the discretion of state legislatures? In other words, should the majority determine the rights of minoritized peoples?
I argue most emphatically that marriage rights in general, and more specifically, legalization for same-sex couples is indeed a federal issue, and that national legislation or a Supreme Court decision must enforce the Fourteenth Amendment of the US Constitution, which mandates that “no state shall…deny to any person within its jurisdiction the equal protection of the laws.” Since different-sex couples, upon reaching legal age, are accorded the rights and benefits of marriage, the current 30 states with state constitutional amendments legitimizing marriage only “between a man and a woman” effectively deprive same-sex couples of “equal protection of the laws.”
If the issue of prohibiting the practice of slavery had not been settled in Lincoln’s 1863 Emancipation Proclamation and later codified as the 13th Amendment in the US Constitution, and left to the individual states or by majority vote, I question whether the states would have uniformly voted on their own to outlaw the practice of slavery, and I indeed believe the practice of legalized slavery would have continued long after the Civil War in some states.
If the issue of school desegregation had not been settled in the 1954 Brown v. Board of Education US Supreme Court decision and later strengthen by the federal Civil Rights Act of 1964, and left to the individual states or to majority rule, I question whether the states would have uniformly relinquished the practice of de jure racial segregation, and I indeed believe that this practice would remain to this very day in some states.
If the issue of forbidding individuals their Constitutional right to privacy and, specifically, the right to contraceptives had not been decided in 1965 in Griswold v. Connecticut by the US Supreme Court and left to the discretion of the individual states or to majority rule, I question whether the states or the populous would have guaranteed these rights uniformly throughout the country.
If the issue of prohibiting individuals from different races from engaging in sexual relations (miscegenation) had not been settled in 1967 by the US Supreme Court in Loving v. Virginia and left to the individual states, I question whether the states would have uniformly relinquished the practice of arresting and incarcerating people of different so-called “races” found engaging in sexual relations, and I indeed believe that these arrests and incarcerations would remain to this very day in some states. The court declared the state of Virginia’s anti-miscegenation statute, the so-called “Racial Integrity Act” of 1924, unconstitutional, thereby overturning Pace v. Alabama (1883) and ending all race-based legal restrictions on adult consensual sexual activity and marriage throughout the US.
If the issue of freedom of speech for grade school students had not been decided in Tinker v. Des Moines Independent Community School District in 1969 by the US Supreme Court, I question whether the states would have uniformly relinquished the practice of restricting or banning students their First Amendment rights, and I indeed believe that today, students would face severe consequences for expressing their constitutional rights.
If the issues of providing for the reproductive freedoms of women to control their own bodies had not been decided in the 1973 Roe v. Wade US Supreme Court decision, and left to the individual states, I question whether the states would have uniformly relinquished the practice of outlawing and arresting doctors for performing abortions, and I indeed believe the subterranean and dangerous practices of self-induced abortions and procedures performed by amateurs would continue to jeopardize women’s health and women’s very lives today.
If the issue of consensual adult sexuality, in particular for same-sex couples, had not be legalized in the Lawrence v. Texas 2003 US Supreme Court case overturning Texas’s so-called “sodomy law,” and thus eliminating similar statutes in 13 other states throughout the United States, I indeed believe we would find many of these laws remaining to this very day resulting in arrest and incarceration of anyone found in violation.
These questions once again remind me of the concept of “tyranny of the majority” articulated in the 1830s by Alexis de Tocqueville, French political scientist and diplomat, who traveled across the United States for nine months between 1831-1832 conducting research for his epic work, Democracy in America. Though he favored US style democracy, he found its major limitation in its stifling of independent thought and independent beliefs. In a country that promoted the notion of “majority rule,” this effectively silenced minorities. This is a crucial point because in a democracy, without specific guarantees of minority rights, there is a danger of domination or tyranny over others whose ideas, values, and social identities are not accepted by the majority.
The founders of this country provided a mechanism for the protection of minoritized peoples against the tyranny of the majority. The checks and balances between the three branches of government: Executive, Legislative, and Judicial, and the authority of national legislation and Supreme Court decisions over the individual states have been shown time and again (though of course not perfectly and not without major adjustments and reversal of policy along the way) to offer some form of protection for minority rights and benefits. If we leave these important issues of social justice and social inequality to majority rule and to state legislatures alone, then many of the evils that have plagued this country throughout its history would continue to this very day.
Returning to the issue of marriage for same-sex couples, state laws currently on the books, as well as any proposed national legislation will not compel religious institutions to perform religious marriages if they are opposed, for they do and will continue to have an exemption. Religious institutions will continue to set their own standards for conducting marriage ceremonies as they always have, without fear of prosecution if they decide that marriage for same-sex couples falls outside of their teachings.
The current state-by-state patchwork quilt of statutes not only serves to keep same-sex couples in marriage limbo and second-class citizenship status, and deprives us unfairly and inequitably of “equal protection of the laws,” but it’s also costly in terms of time and resources to all parties involved in political educational campaigns, litigation, and in the legislative process. Though I do not hold out much hope that the current Congress will do the right (correct) thing by passing national legislation, I believe that in the context of a massive grassroots effort, either the next Congress or the Supreme Court will make marriage equality a reality.