Saturday, June 6, 2009

Gay "marriage": a victory for decentralization?

I've been spending quite a bit of time lately over at the Tenth Amendment Center where they're doing a good job of keeping up with all of the tenth amendment resolutions, and other state enactments and citizen movements as they're happening.

Just a few days ago New Hampshire became the sixth state in the union to authorize gay "marriage." In praise of this radical move by the New Hampshire legislature, Michael Boldin of the Tenth Amendment Center writes that,

Whether you support this particular issue or not, I think people across the political spectrum can see this as a victory for decentralization. The 10th Amendment makes it quite clear that the most important social issues should be handled on a state level, or by the people themselves.

Really? I'm not going to dispute that the tenth amendment reserves to the states and to the people the great residual of political powers, obviously, it being a central theme of this blog the principle of Balanced Constitutional Government. But exactly how is this instance some prime example of a "victory for decentralization?" And if it is an example of such a victory, isn't the fact that 34 or 35 other states in this union which have explicitly denied homosexual "marriage" is the more important and more decisive victory ... for decentralization?

I suppose I understand the impulse to applaud movements which seem to favor the decentralization of political powers consistent with the constitution, particularly in an era in which centralization of political powers is not only commonplace, but one of the ruling principles of our degenerating society. On the other hand, something so obviously self-destructive to society as undermining its foundational institution hardly seems to me to be especially deserving of praise and adulation, particularly when the exact same principle one is supposedly applauding has been applied in six times the number of states, albeit with diametrically opposing results.

I won't say that Boldin has some kind of underlying homosexual advocacy agenda here, because we know that people are often on the wrong side of an issue for all the right reasons, and vice versa. But it seems rather odd to me, nonetheless, to praise this radical, self-destructive movement by the state of New Hampshire while neglecting to mention the movement amongst the states to protect the institution of marriage. But maybe it was just an error of omission.

Y'know, had the New Hampshire legislature voted the other way, not only would it be able to claim a victory for decentralization, but it would have also retained its dignity. As it is, the state is apparently ruled by sodomites.


chiu_chunling said...

This actually shows a slight misunderstanding of the precise nature and purpose of 'decentralization' as a federal principle.

Consider for a moment the case of some state (unconstitutionally) rearranging its definitions of weights and measures so as to effectively create a tariff on out of state goods. By the blind argument that anything which distinguishes the states from each other must be service to the cause of 'decentralization', this would be a good thing and the Constitution is wrong to forbid it.

But the purpose of decentralization isn't fragmentation of the states, but freedom of individuals to move from a state that has onerous or ineffective government to one that has felicitous government (I initially said "good", but changed my mind). So an act that sets up a significant bar to the ability of persons to migrate from state to state actually hurts the function of decentralization (besides the fact that such barriers weaken the union of the states and thus invite destruction of the nation, which is a deleterious end).

'Homosexual marriage' laws do not just sanction homosexual activity, they create legal barriers to people having their marriages recognized when they cross state lines (or provide that homosexual marriages be imposed in states which have chosen not to recognize them). Just like letting states set up their own definitions of days of the month and parts of a pound (or both, in some scheme positing that on certain days a pound has sixty ounces and equals the weight of a quart of water while on others it is the sum of that day's rainfall falling into a washbasin), this destroys the ability of people to move or do business across state boundaries.

Which ruins the entire point of decentralization of the laws. States can't coin their own money (except out of precious metal of certain market value), define their own measures, or set up more direct barriers to interstate commerce for a reason. The founders of the nation did not foresee 'homosexual marriage' (hardly any sane person would), but does anyone doubt they would have erected some barrier to it if they had?

Oh, wait.

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

So...according to the Constitution, Congress has explicit power over the states' ability to hand out marriage licenses. Imagine that. Those guys were pretty sharp after all.

Terry Morris said...

So...according to the Constitution, Congress has explicit power over the states' ability to hand out marriage licenses. Imagine that. Those guys were pretty sharp after all.

Yes, but that's a double-edged sword, and you know it. The full faith and credit clause of the constitution is what the homosexual lobby uses to obtain marriage licenses in one state, and to go about challenging the laws of other states which do not permit 'gay marriage.' This is the reason people argue for a federal marriage amendment.

I've never really favored the FMA simply because I know what the result would be -- another huge, wasteful federal beaurocracy. But I have said that if we must have a federal marriage amendment in this country, then let the states petition Congress to call an Article V Convention for proposing it, as opposed to ... that other method of amending the constitution.

chiu_chunling said...

There's a step missing there. The FMA was because the Supreme Court stood poised to strike down a simple act of Congress on the subject of marriage as being unconstitutional. Admittedly, that danger may have abated somewhat by the number of states that have passed their own acts on the subject without the Supreme Court weighing in.

Anyway, Congressional authority to prescribe what manner of acts the states can ram down one others' throats is the bridle on the Full Faith and Credit clause. The clause itself is essential to the geographical mobility and economic freedom of the American people, but would be subject to abuse if no authority existed to limit it.

In any case, so long as the Defense of Marriage Act is enforced (which does pose a problem, since it really hasn't been), FFC arguments are of no use to the homosexual movement. In theory, a person who wishes to nullify the destructive effects of a 'homosexual marriage' can simply move to a state which doesn't recognize it...but the practice seems broken.

The difficulties America faces in respecting Constitutionally based federal principles do not arise from any fault in the theory, but in the willingness of certain parties to put that theory into practice. Any victory for those parties is a defeat for the principles of federalism, even were it not for the abject silliness of claiming that there was any intention that such things as the definition of marriage should be mutable.