Penn Political Review

States’ Rights and Gay Rights

Jack Solowey May 18, 2012 Soapbox Blog Comments Off on States’ Rights and Gay Rights

In 1958, Richard Loving, a white man, and Mildred Jeter, a black woman, lay in bed in their Virginia home. Their marriage license, issued in the District of Columbia, hung over their bed. They were torn from that bed when a grand jury indicted them for violating Virginia’s anti-miscegenation laws. According to the State Supreme Court of Virginia, these laws were meant  to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride.” The Lovings were convicted of interracial marriage, and forced to leave Virginia.

In 2012, Brian Willingham, an American man, and Alfonso Garcia, a Mexican man, were married by the State of New York. After a routine traffic stop in California, Alfonso was taken to a detention facility in Arizona and scheduled for deportation by the Department of Homeland Security. For heterosexual couples, a state marriage license is a clear path to a green card. Under the federal Defense of Marriage Act, however, a homosexual marriage is not a valid legal status. Brian is legally barred from petitioning for his husband’s green card. 

The Supreme Court ruled in the 1967 case of Loving v. Virginia that anti-miscegenation laws violated the Fourteenth Amendment’s Equal Protection Clause. The state of Virginia had argued “that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.” It, therefore, took the supremacy of the federal court system to overturn patently racist state laws that denied the Lovings their marriage rights.

President Obama, however, believes as the State of Virginia believed in 1967 that marriage rights should be decided by the states. In his landmark articulation of personal support for gay marriage he stated,  “I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”

Historically, the elimination of discriminatory marriage laws has actually been a federal issue. In Loving, Chief Justice Earl Warren wrote, “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

Furthermore, the definition of marriage was already federalized in 1996 when President Clinton signed the Defense of Marriage Act (DOMA). DOMA restricts same sex marriage on the federal level in two ways: 1) it defines marriage as the union of one man and one woman 2) it permits states to disregard same sex-marriage licenses issued by other states, thereby avoiding implications of the Constitution’s Full Faith and Credit Clause.

President Obama’s expression of personal support for gay marriage is, his aides admit, an affirmation of principle and not a national policy goal. Obama’s position on DOMA is therefore nebulous. Of course, the Obama administration has no way of repealing DOMA because that power resides with Congress. The Obama administration does, nevertheless, say it will not use executive power to defend DOMA.

For instance, whereas Obama’s Justice Department argued before the Supreme Court on behalf of Congress’s healthcare bill, the President has directed his attorneys not to do the same for DOMA if that law is challenged.  Nevertheless, while the Obama administration will clearly not defend DOMA, they are vague when it comes to “enforcing” DOMA. The idea of not defending DOMA has been parlayed into the phrase “not enforcing in the courts.”

Outside of these courts, however, the executive branch is still practically enforcing DOMA. This fact is all too evident to same-sex married couples like Brian and Alfonso that include a US Citizen and a foreign national. For them, the stakes of a federal definition of marriage could not be higher. If Alfonso is deported, he will not be allowed back in the United States for 10 years.  As recently as May 3, 2012, Brian and Alfonso petitioned the Obama administration not to enforce DOMA statutes at the Department of Homeland Security. They are awaiting a reply.

The struggle to define states’ rights is the recurring battle in American history. The Constitution itself was born out of this battle, and the varying interpretations of that very document led to war. Literally (see U.S. History From 1861 to 1865). Even after Appomattox, the state’s rights mantle has been a tool for diverse ends. Once the obstacle to universal recognition of interracial marriage, today, the states’ rights position ignores federal marriage laws and undermines same-sex marriage rights. President Obama’s personal support for gay marriage is a symbolic victory for gay rights, but his states’ rights position will only continue to compromise same-sex marriage until DOMA can be overturned.


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