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Should the issue of same-sex ‘marriage’ be left to the states?

Editor’s note: This is the 19th story in a series examining the national debate over same-sex “marriage.” This series has been weekly since November, but now will be updated as news develops.

NASHVILLE, Tenn. (BP)–When President Bush publicly backed a federal marriage amendment in February, Democratic candidate John Kerry released a statement, saying the issue should be left to the states.

Kerry’s argument is a common one.

Former Republican Congressman Bob Barr, a self-labeled “proud conservative,” told a House subcommittee in March that “states have the right to make bad decisions.” That same month, Democratic Sen. Diane Feinstein said the issue of marriage has “always been” under the purview of the states.

“And throughout this nation’s history,” she said, “the states have proven entirely capable of dealing with this issue.”

In many instances, the same-sex “marriage” debate has pitted amendment supporters against those claiming a states’ rights argument.

But some believe the reasoning used by states’ rightists is flawed. Doug Kmiec, an author and a constitutional law professor at Pepperdine University, says that an amendment supports states’ rights.

“Amendments to the federal constitution aren’t passed without the approval of the states,” Kmiec told Baptist Press. “… There is indeed no constitutional process more respectful of states’ interests than a constitutional amendment.”

Kmiec argues that an amendment underscores states rights, given that the representatives of the people –legislators in Washington — must approve it before being ratified by three-quarters of the states. From beginning to end, the states have a role, he says.

Kmiec is not alone in his reasoning. Last year conservative commentator William F. Buckley backed a marriage amendment, arguing that without an amendment the definition of marriage would be left up to the courts.

As Buckley and some other conservatives argue, the debate is not one of a marriage amendment vs. states rights, but rather one of court activism vs. states’ rights.

“If the Supreme Court is going to continue to perform as a standing constitutional convention, then it becomes a conservative warrant to employ constitutional defenses,” Buckley wrote.

Other conservatives assert that the states’ rights argument is a smokescreen for those who privately favor same-sex “marriage.”

“That argument either comes from intellectual academics, overly optimistic pundits, cowardly Republicans or homosexual activists,” Randy Thomasson, executive director of the Campaign for California Families, told Baptist Press. “Marriage is such a foundational issue for family and this nation that amending the constitution to protect marriage, its rights and benefits in all 50 states is not only very appropriate, it’s very necessary.”

“… Liberal politicians won’t be honest with the voters. They’ll claim a states’ rights argument instead.”

In February Sen. Ted Kennedy, D.-Mass., said in a speech that a marriage amendment would “prohibit states from deciding” the issue of marriage benefits “for themselves.” The next month, he told NBC News’ Tim Russert that he supports the legalization of same-sex “marriage.”

The strategy of legalizing same-sex “marriage” nationally involves two major steps: legalizing it in one state and then filing suit in federal court to have those licenses recognized nationwide. The federal suit would ask that the court strike down the Defense of Marriage Act, which was signed into law in 1996 and protects individual states from being force to recognize another states’ same-sex “marriages.”

If DOMA were struck down, all 50 states presumably would have legalized same-sex “marriage” by default.

Kmiec said those who make the states’ rights argument have a “hidden” desire — wanting the issue of same-sex “marriage” handled in courts. The “ideal choice,” he said, would be for the states to maintain the status quo and to have the states “responsibly recognize the importance of marriage.”

But with Massachusetts set to legalize same-sex “marriage” May 17, the status quo is no longer possible, he said.

“The arguments that this is a states’ rights issue, I think are at bottom fairly disingenuous, because the supporters of same-sex marriage will take it by any means, including the means whereby all of American democracy is pre-empted by a Supreme Court ruling in their favor,” Kmiec said. “If they could get that tomorrow, they would pursue that tomorrow.”

“Same-sex ‘marriage’ supporters,” Kmiec said, want to see their issue advanced much like the issue of abortion was advanced some 30 years ago.”

“Once the court speaks, democracy goes silent,” he said. “And that’s not a healthy thing for the Republic.”
For more information about the national debate over same-sex “marriage,” visit

    About the Author

  • Michael Foust