A little over a year ago I wrote an article for The Independent Voter Network discussing the string of federal judge rulings that overturned state bans on same-sex marriage. In light of the recent Supreme Court ruling on Obergefell v. Hodges, and some of the criticism the ruling has received, I felt it would be useful to revisit some of the points I made last year.
Does This Violate State’s Rights?
Since judges began striking same-sex marriage bans, one of the most common complaints is that federal judges, do not have the power to infringe on state issues. Opponents of the ruling this past week have carried over the same argument, saying that this is a state’s rights issue and that the federal government should not have a say.
As I explained in my article, this argument stems from a fundamental misunderstanding of the tenth amendment where the idea of “state’s rights,” which I actually support, comes from. The tenth amendment states;
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.
While it is true that issues not addressed in the constitution as federal matters, are by and large to be left up to individual states to sort out, the key is actually in the middle part of the text. Though state’s have rights to make their own laws and establish their own constitutions, federal law ultimately trumps state law. As such, the state laws and constitutions cannot violate federal laws and the US constitution.
So if a state wants to make its own laws, that’s fine. So long as those laws are inline with the US constitution, and in Obergefell the SCOTUS ruled that state laws did in fact violate the due process clause in the 14th amendment.
To give another example, let’s suppose the state of Minnesota decided to pass a law that bans certain people from receiving the right to trial. In such a case we would expect a judge to step in and overturn the law for violating the 6th amendment.
Judges Are Not Suppose to Make Law
I hear this complaint all the time when dealing with those opposed to same-sex marriage, or even just the way in which the process of legalizing it is done. The argument is that the Supreme Court is only supposed to rule on whether or not things are constitutional or not, acting as “legals umpires” calling balls and strikes. Again, I agree with this concept of the Court’s role. However, I fail to see how this is any different from what the Court did on Friday. There was a legal challenge regarding the constitutionality of a law, and they ruled it not constitutional. The Justices did not sit down and draft a piece of legislation (that I would be opposed to), they ruled yes or no (ultimately no) on a legal case as they are supposed to.
This Is Not Democracy! The People Voted!
Another particularly annoying objection to this ruling is the notion that the court making this decision “goes against democracy” (actually, we’re a republic) because they are reversing in one swoop, statutes which millions of people voted for.
As I already explained above, the simple fact that these bans were voted for by the people does not matter if the statute is in conflict with the federal constitution as it is not permissible anyway.
Further, as I cited in my article, a Washington Post poll from last spring found that not only were the federal rulings (and now SCOTUS ruling) not overriding the will of the people, but instead, affirming it. According to the poll, of the 33 states that approved constitutional bans against same-sex marriage in 2004 and 2006, by 2014, 53% of people in those states supported allowing same-sex marriage.
Among the nation as a whole, attitudes towards same-sex marriage has gone from 39% in support of in 2006, to 60% in support of this past May according to a Gallup poll. So while some will try to argue that the Court’s ruling is denying and overturning the will of voters, keep in mind that is based on votes made in 2004, and 2006, essentially 10 years ago. According to some conservatives, people never change their minds. Public opinion is not on their side anymore and so they cling to the “good old days” when people still agreed with them on this issue.
What Does This Mean for Religious Freedom?
This is where I will probably break away from liberals regarding recognizing same-sex marriage. While I fully support full equal rights for same-sex couples, I do not think we should force other people to recognize it if they truly are going to be such sticklers about it. Equality under the law does not mean equality in private life. I’ll go to the ‘gay wedding cake’ as an example. I do not believe we should force bakeries to make such a cake if it truly goes against the owners personal beliefs. Just as I don’t believe we should force a Jewish bakery to make a cake for a Hitler birthday celebration at a neo-nazi gathering. Let me clarify, I am in no way equating a same-sex wedding to neo-nazism, but merely saying that we shouldn’t force people to accept certain beliefs in their private lives, just under the law.
If someone owns a business, like a bakery, they should have the freedom of association and be able to do business with, and hire, whoever they wish, and likewise, not do business with or hire whoever they wish.
Also, I see little reason behind forcing a pastor to perform a same-sex wedding if he or she is morally opposed to doing such. This has been a concern among conservatives now, and I would agree with this concern. I would ask the couple, why waste their time trying to get married by someone who doesn’t approve of your lifestyle anyway. If it were me, that would be the last person I would want to perform my wedding.
And if a bakery or photographer is so set in their ways, than don’t give them your business. Let the market take care of it. 60% of American’s support same-sex marriage now, so we should expect to see the reflected in the market of commerce. In the free market, people vote with their dollars, and if the demand sides with friendly attitudes toward same-sex couples then businesses will have to either meet that demand, find a new niche market, or go out of business. Liberals will object to this by saying this is just “theory.” To that point I would simply direct people to the Memories Pizza situation in Indiana from earlier this spring.
Within days of the owner’s comments saying they would refuse to cater gay weddings, public backlash, one star Yelp reviews, and angry phone calls, forced the pizza shop to shut down their operations temporarily, leading some to start a GoFundMe page for the shop. This is a clear example of the free market in action, and people voting with their dollar.
For more on that point, I would refer you to my IVN article regarding last years Mozilla CEO case.
–M
The Max Blog 