Clarifying gay marriage & federalism:

Chris Atkins at Semper Reformanda once again takes issue with my assertion that there may be a federal right to gay marriage (I’m glad someone is reading my blog): "I continue to assert that this is an unworkable and ultimately, unconstitutional approach to federal jurisprudence. Why? Because a federal 'right' is in reality an absence of specific power for the federal government to act in a certain area. We have a federal 'right' to free speech because the Constitution does not give power to Congress to regulate speech. We have a federal 'right' to own firearms because the Constitution does not allow Congress to regulate firearms."

Federal rights as an absence of power of the federal government? What about the validity of the federal government, through its courts, protecting rights of individuals against states that may infringe them? What about when a state doesn’t recognize free speech? Is it appropriate to file a lawsuit in federal court for federal First Amendment protection in this circumstance? What about the 14th Amendment? Does this not incorporate the first 8 Amendments of the Bill of Rights Against the states? What about the “Privileges or Immunities Clause” of the 14th Amendment? If there is a federal right to gay marriage, it is to be found there.

I once again turn to Randy Barnett’s Restoring the Lost Constitution. Barnett correctly notes that the Privileges or Immunities Clause, not the Due Process Clause, is the proper place for incorporating the Bill of Rights. Now in discussing natural rights, I have remarked that no government—federal, state, or local—may infringe on these rights. And that the 14th Amendment gives the federal government the authority to enforce these rights against the states. The response on the gay marriage issue is that marriage is not a natural right; it is a civil right. That may very well be true. But, as Barnett informs us in Chapter 3, "Natural Rights as Liberty Rights," the term “privileges or immunities” is broader than “natural rights” (that’s why “privileges or immunities” rather than “natural rights” was chosen for the 14th Amendment); it includes all natural rights as well as some non-natural positive rights.

So the question that is begged is, if the right to marry is not a natural right, is it one of those non-natural civil rights that is included in the “privileges or immunities clause,” that no state is allowed to abridge and that the federal government may justly rule over. If the answer is yes, the next question is whether a state’s refusal to allow a gay individual the right to marry the person that he or she loves abridges his or her civil right to marry.

And I think it would be reasonable, in lieu of what the courts have said about marriage, to view it as a civil right. As Andrew Sullivan recently wrote in the New Republic, “when the matter [of marriage] came before the courts, they really had no alternative but to address the matter in a civil rights context. ‘The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,’ wrote Earl Warren in Loving v. Virginia, the landmark miscegenation case in 1967. ‘Marriage is one of the “basic civil rights of man”...’ The right to marry whomever you wish is a fundamental civil right. That is not contestable in the history of this country's jurisprudence. Now you may argue that marriage is definitionally heterosexual and therefore such civil rights only apply to heterosexuals. But you have to make that case--that civil marriage as currently practiced and enforced is inherently heterosexual--before you can dismiss the notion that it is a matter of civil rights.”

(And by the way, Mr. Atkins, the federal courts have ruled that there is a "right to marry" in contexts other than interracial couplings. See Turner v. Safly and Zablocki v. Redhail.)

Mr. Atkins believes that marriage is a matter wholly reserved for state governments to decide: “The extent to which the states and the people sovereignly exercise that power--defining or redefining marriage as they see fit--should have no bearing on the federal justiciability of the marriage issue. It's a power reserved to the states and the people--period. If 49 states allow for ‘gay marriage’, it does not give warrant for the U.S. Supreme Court to step in and override the judgment of the 50th state that still holds to the ‘traditional view’ of marriage.”

Okay I follow this logic. I would add that, conversely, if marriage is either a natural right or a civil right, falling within the reach of the “privileges or immunities clause,” and if gay people have such a right to marry the person whom they love, then the Supreme Court, in theory, has the right to rule and force every state to recognize gay marriage, even if not one has yet to do so. I just don’t think that the Supreme Court should do this for wholly practical, not legal reasons. Waiting until an overwhelming majority of states recognize gay marriages, and then stepping in and ruling is a matter of timing –of “when” and not “if”—as opposed to right.

(Finally, I must point out that my post is full of “ifs”; that is, I have not yet decided whether there indeed is a federal right to gay marriage under the 14th Amendment. )