Saturday, June 25, 2011

Why Conservatives Should Support Gay Marriage

Let's start by recognizing that the definition and regulation of marriage, including the enforcement of all the legal rights and obligations that marriage entails, has always been primarily a matter of state law. That means that those who argue for an expanded scope for state's rights, and who decry the growth of the federal government, should fully support the process that is leading one state after another to conclude that the rights and obligations of marriage should be extended to same-sex couples. This is federalism at work. It might be slow; it might be inefficient; but it is a process that allows states to experiment with change, and to the extent that change is gradually embraced by the entire country, allows people gradually to come to terms with new ideas. It is also a democratic process, even in states in which the courts have ruled in favor of allowing same-sex marriage, because the courts are also subject to the political process. (see Iowa)

In Arkansas or Mississippi or Texas, it might take decades, if ever, for people to accept the idea of gay marriage. But why should anyone stand in the way of New York, especially since it accomplished this result through the legislative process and not through the courts? To oppose the popular will in any state in favor of a traditional moral code seems futile. A more difficult question arises when a couple that is married in New York (or Massachusetts or Iowa or a couple of other states) decides to move to Mississippi or Arkansas or Texas, where gay marriage might be frowned upon. We might compare that situation to the days when a number of states banned miscegenation, but were asked to recognize the marriages of mixed race couples who had moved from other states where such marriages were allowed. In those situations, the legal and constitutional arguments that would require recognition of such marriages seem overwhelming.

The thing that might push change even faster, and could be of some concern to conservatives, and even to gay marriage proponents who are worried about public acceptance of equal rights, would be federal courts' recognition of marriage equality under the 14th Amendment, which would force all states to change their laws. Then we might have a situation similar to when the Brown decision was announced in 1954, or when the Civil Rights Act was passed in 1964, or when Roe v. Wade was decided in 1973. When the federal courts or Congress enforce civil rights, that does not necessarily end the debate. In the case of abortion, the debate is still going on almost 40 years later.  To the extent that acceptance of gay marriage may be inevitable, and the likelihood of finding gay marriage to be a protected constitutional right becoming stronger, conservatives should be pleased to see it happen in a state-by-state, gradual way.


Politically, there are also good reasons why conservatives would want to support the rights of states to determine their own marriage laws, even if they want to remain non-committal on whether they personally favor gay marriage or not. That way they avoid offending voters no matter what their moral views on the subject. And they stay true to the principles of supporting federalism and democracy. Politically speaking, one would also think it advantageous to conservatives to encourage gays to form traditional family relationships, which might even make it more likely that some of them would vote Republican.

That brings the discussion to where the President should stand on this issue. As long as the issue of gay marriage is primarily a state law issue, it seems appropriate for the President to respect the rights of state voters regardless of which way they decide. But it should also be clear that President Obama, who has already done more for gay rights than any president in history, is leading toward acceptance of full equality for same-sex couples, and fully supports the movement that has led to New York becoming the largest state so far to recognize gay marriage. In response to what happened in New York specifically, a White House spokesman is quoted today as saying: "The states should determine for themselves how best to uphold the rights of their own citizens. The process in New York worked just as it should." To the extent that gay marriage is a federal issue, the administration has moved strongly in favor of extending civil rights to same-sex couples. The Obama administration has already engineered the repeal of Don't Ask Don't Tell, and is no longer defending the constitutionality of the Defense of Marriage Act.

We are headed for a showdown in the Supreme Court, but given the Court's conservative majority, no one can be sure the Court would find a federal constitutional right to same-sex marriage. In the meantime, conservatives should follow the President's lead, or even get out in front of him on this issue, and support the process that has led to New York State recognizing the right of same-sex couples to marry. It's the smart move philosophically, legally, morally, and politically.

And if all those arguments are not good enough, here's Mark Grisanti, a courageous upstate Republican legislator giving his rationale for voting in favor of same-sex marriage in New York.

6 comments:

  1. If gays want to enjoy a 50% divorce rate like straights I say more power to them!

    ReplyDelete
  2. "Why Conservatives Should Support Gay Marriage".

    Why didn't your article begin with the premise that "we should all support gay marriage"?

    Not all the left supports gay marriage and not all the right opposes gay marriage.

    C'mon Joe, this basic.

    ReplyDelete
  3. Sorry you're disturbed by my slant Kevin. I suppose I could write another post on why liberals should support gay marriage, but honestly, I'm not sure what I would write in such a post. Maybe just "duh."

    What I would actually want to say to liberals is to get off Obama's case about gay marriage. He has to be president of the whole country. (I think I did try to make that point in my Dan Preiffer post.)

    But anyway, Kevin, you should know from reading my blog, that I'm not as interested in policy questions as I am in process questions. So I try to stay away from subjects like, why we should all support _____________. (whatever issue it is) I'm more interested in how we can all get along, or why we should all support democracy, or why we should all support freedom, or why we should all support peace.

    ReplyDelete
  4. In your own words you want to get liberals "off Obama's case about gay marriage". You make my point for me.

    << I'm more interested in how we can all get along, or why we should all support democracy, or why we should all support freedom, or why we should all support peace. >>

    Ha! I whole heartedly agree with that statement which is why I posted!

    ReplyDelete
  5. It's a sign of progress. 10 years ago, one would have wondered if this would ever become legal in NYC.

    ReplyDelete
  6. I completely agree, it is a sign of progress all the way around. With a majority the GOP could have blocked the bill from even going to the floor. In NY the (D) and (R) did the right thing.

    ReplyDelete