Same-Sex Marriage: States Rights or Civil Rights?

The culture wars have returned to the headlines in dramatic fashion over the past week as a result of President Obama's decision to announce that he personally supports same-sex marriage as seen in this video:

Obama Affirms Support for Same-Sex Marriage | Video - ABC News

The announcement by the president surprised no one.  Rumors of the president's 'evolution' on the issue had been circulating Washington and the blogosphere for weeks prior to the official announcement.  Yet, the president's position was not a full-throated endorsement of same-sex marriage but a statement of his 'personal' belief about the issue.  In the very next breath the president said that he believes it is an issue for states to decide on their own.  In short, nothing was really changed by the president's statement except that he may have made some of his more progressive supporters slightly happier.  He certainly didn't do much to advance their cause politically other than to announce they have an ally in the Oval Office.  It's kind of like saying 'hey, my thoughts are with you, good luck.'  The president doesn't have to, and probably won't, say much more about the issue henceforth.

It is, of course, more telling what the president did not say than what he did say that matters.  President Obama did not say that he viewed same-sex marriage as a matter of equal rights or civil rights.  If he had, he could not adopt the 'states should decide' approach to the issue.  Civil rights cannot be subject to majoritarian preferences.  What the president has done is turn this issue over to the Supreme Court for a final decision.  The issue was headed there anyway as a result of the invalidation of California's Proposition 8.

Regardless of what one's personal view of homosexuality or same-sex unions/marriages happens to be, the ultimate question must be one of civil rights.  Is the entry into a legal arrangement that provides benefits and privileges sanctioned by the state a right protected by the United States Constitution or not?  Personally, I don't believe government should be involved in marriage apart from regulating that which is in the best interests of the general welfare (such as allowing incestuous marriages or cross species marriages!).  Same-sex unions do not meet that bar.  Nevertheless, government has chosen to involve itself in the regulation of marriage and thus must abide by the Constitution.

The Equality Perspective


From a political science perspective, I think the equality argument must be granted much weight.  Proponents have argued that banning same-sex marriage is the equivalent of denying marriage to persons of differing races.  While I grant there is a slight similarity here, I think they are barking up the wrong tree, so to speak.  The stronger argument, I think, comes from the idea that government is endorsing a specific type of societal arrangement, i.e., the traditional male-female union, and then bestowing rights (inheritance, visitation, custodial, etc...) on those citizens who enter into that union while denying others the ability to enter into a similar union based on sexual orientation.  The appeal here should not be to laws banning miscegenation but to the founding documents upon which the nation was created.  Thomas Jefferson wrote,

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed....

When governments deny same-sex couples the right to enter into a marital union, does it not deny them both liberty and the pursuit of that which will make them happy?  To be sure, government may deny citizens liberty and the pursuit of happiness under certain conditions.  One of these conditions would be if the chosen course of action could be harmful to society or to individuals within society.  This may or may not be the case with same-sex marriages but the burden of proof must lie with the government.  In order to deny liberty and happiness the government must first perform due process as stated in the 5th and 14th amendments to the Constitution:

No person shall...be deprived of life, liberty, or property, without due process of law...(5th Amendment)

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.  (14th Amendment)

From the viewpoint of this political scientist, the denial of rights or privileges by either the federal or state government without due process of law and denial of the equal protection of the law to same-sex couples is immensely troubling.  What might be even more troubling is that President Obama is only four years behind in adopting the position taken by former Vice-President Dick Cheney in this video: