WITH ALL of the ink gay marriage has generated on these pages, it is difficult to add anything new to the discussion. But aside from arguments about morality, individual rights and social policy, there is also a constitutional concern that needs to be addressed.
The problem is not only whether banning gay marriage or gay conduct is constitutional; the Supreme Court and various state courts have already ruled on this. In light of a proposed constitutional amendment addressing gay marriage, the more fundamental question is what role the federal government should play in this debate. As things stand now, national Republicans are not only on the cusp of betraying their core principles; they risk altering the shape of America's entire constitutional structure the Framers so carefully crafted.
Last Wednesday's Washington Post reported "key advisers" had informed the media that President Bush will support the Federal Marriage Amendment sponsored by Rep. Marilyn Musgrove, R-Co. The amendment reads, "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups," ("Bush Plans to Back Marriage Amendment," Feb. 14).
What this proposal means in plain English is that state governments cannot set their own policies on gay marriage. Not only that, but the federal constitution will tell state governments how to interpret their own constitutions. The nation as a whole -- most of which had no role in drafting a particular state's constitution, will tell states their constitutions do not require the benefits of marriage to be extended to same-sex couples who could not be legally married, even if states believe otherwise.
This mighty assertion of federal power over the states would devastate our federalist system. Federalism, as readers will recall from Politics 101 or high school civics, is our country's great innovation of distributing rights and responsibilities between federal and local authorities. Republicans have long been the party of federalism and states' rights. Newt Gingrich, mastermind of the 1994 Republican takeover of Congress, proudly carried in his shirt pocket a copy of the Tenth Amendment, which says that the powers not specifically granted to the federal government by the Constitution are reserved to the states. The idea is that there are some things that are just better off being left to the states. For example, while citizens in one state might like their kids to read "Heather Has Two Mommies" in school, those in other states might like a moment of silent prayer instead. Allowing states to set different policies according to their citizens' unique preferences makes everyone happier and better off.
The beauty of America lies in its local traditions and practices. To preserve this diversity, states must be permitted to regulate in areas where there is no national consensus but strong regional differences. If California were required to repeal its "domestic partnerships" law for gay couples, right-wingers could not dump on denizens of the Left Coast and hollow-headed Hollywood types. If Vermont had to roll back its "civil unions" law for homosexuals, the conservative Club for Growth could not cast Howard Dean as a Vermont "freakshow" in its television ads. If Massachussetts could not claim its constitution requires gay marriages, as its Supreme Court did last week, Republicans could not have a field day painting John Kerry as a "Massachusetts liberal."
Republicans have always strongly supported the states' abilities to set their own policies as long as they do not clash with other states' rights or fundamental national concerns. Gay marriage is a fundamental concern for many Americans, but it is not a concern that implicates the federal government. Nor is it an issue where liberal states would force gay marriages on conservative states. Under the 1996 Defense of Marriages Act, states are already allowed to refuse to recognize same-sex couples who were hitched elsewhere.
During the 2000 election, President Bush famously fended off Al Gore's attacks on his economic plan with cries of "fuzzy math." But this year, it is Bush who is fudging matters by fuzzying our country's ironclad respect for state sovereignty. Even if Republicans feel they are defending the institution of marriage against a cultural assault, there is something more important to defend: Our Constitution, and the powers it protects for the states to regulate -- not only marriage, but everything else Republicans believe states should regulate.
(Eric Wang's column appears Wednesdays in The Cavalier Daily. He can be reached at ewang@cavalierdaily.com.)
Read More
PATEL: Personal development courses support students beyond the gradebook
By Heer Patel | 3 days agoThe University must rethink its approach to education beyond traditional major-specific requirements and mandate personal development courses.
EDITORIAL: Commercialization threatens U.Va.’s educational mission
By Editorial Board | 3 days agoAfter all, measuring the University’s worth in terms of accrued capital, operational efficiency and numerical rankings molds this space into just another cookie-cutter institution.
YOUNIS: Why every U.Va. student should say yes to English
By Ayat Younis | January 9, 2025Every student at the University, regardless of their primary field of study, can professionally and academically benefit from engaging with the English department.
