Federalism as a Solution to the Culture Wars: a Proposal

NOTE: This post appeared in an earlier form on my own weblog. I’m submitting it to SEB as a guest post because I think the issues it addresses deserve attention and consideration from a larger audience—especially among thinking members of the political left—than my lowly blog can provide. I’d like to thank Rick Brady, whose comments to my original post helped me find its soft spots.

Rick Brady at Stones Cry Out has recently hit on a topic1 that I’ve been discussing amongst family and friends: the use of a states’ rights approach as a way to end the divisive national debate over gay marriage. Under such a philosophy of government—known as federalism—the states would each be permitted to make their own laws about moral issues such as gay marriage, and the federal government would stay out of it. By removing a few of the seemingly intractable wedge issues from the national discussion, we may be able to alleviate some of the partisan rancor that has plagued our country and focus on other important issues that are less emotional.

An American Tradition

Before diving into the possible pros and cons of federalism, it should be noted that federalism is the constitutionally-established governing philosophy of the United States. The Tenth Amendment clearly gives the states a great deal of leeway in how they conduct their internal affairs. It really could not have been done any other way. The original thirteen colonies were largely self-governing entities. Having just won their freedom from the British monarchy near the time when the Constitution was drafted, the colonies weren’t eager to surrender most of their autonomy to another powerful central government. Over the years, the federalist model has fallen out of favor in the U.S., and this country has begun to function more like a unitary state.

A Recipe for More Division?

In his post, Rick highlights the concern that a return to federalist principals will only make matters worse by leading to mass-relocations by both liberals and social conservatives to states with laws that are friendlier to their philosophies. The possibility for even greater division is a valid concern, but one that I believe could be overcome by state-level efforts to be competitive on other terms.

For example, to offset the effects of federalism-induced migration states could offer attractive tax incentives for businesses, encouraging them to locate there and thus boosting the state economy. They could entice families with an excellent public school system, or draw young adults with an inexpensive, high-quality state university system. The one-two punch of a quality university system and a strong state economy with steady hiring would be particularly effective.

By allowing every state to pass its own laws consistent with regional moral standards, former wedge issues may well vanish into the background for most people. Let’s face it: only about 10% of the population is gay. If you’re straight, are you going to pass up a good-paying job in Alabama (which, hypothetically, has low in-state tuition costs for your college-bound daughter) just because gay people can’t get married there? It doesn’t effect you—the hypothetical straight person—so probably not. With about 90% of the population left to attract through other means, the “red” states wouldn’t be at that much risk of losing a healthy liberal and moderate population.

The Chaotic Potential of Federalism: A Constitutional Solution

Rick seems worried that a return to federalism in the U.S. might cause some states to move to extremes of the political spectrum—passing laws that permit prostitution, legalize drugs, or establish a state-sponsored religion. In addition to creating an even more polarized national environment, this would produce a chaotic interstate legal environment.

I understand Rick’s concerns here as well, but feel that they’re unwarranted. One major reason that “pure federalism,” as he calls it, wouldn’t work in this country is that the Constitution explicitly disallows it through the combined effects of the Supremacy Clause of Article VI—establishing the primacy of the Constitution and federal law over state and local law—and the Equal Protection clause of the Fourteenth Amendment, which states in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; …nor deny to any person within its [the State’s] jurisdiction the equal protection of the laws.

I’m not a lawyer, but it’s my understanding that the Supremacy and Equal Protection clauses—as traditionally interpreted within the dominant paradigm of cooperative federalism—are the reason that the Supreme Court can strike down state laws and parts of state constitutions. These two constitutional protections strictly limit the scope of federalism. For example, Rick raises the specter of a state-established religion as one argument against federalism. This would be an impossibility, however, since any state-sponsored religion would violate citizens’ First Amendment right to religious freedom. In this way, the Supremacy and Equal Protection clauses offer built-in constitutional protection against the kind of “Faustian bargain” that Rick warns federalism might become.

There’s a way out of the legal chaos problem, too. In the event that the exercise of states’ rights got so out of hand as to make a scrambled mess of interstate legal operations, the federal government would be well within its rights to pass laws directed at ironing the situation out. This is permitted by the Commerce Clause of the Constitution, which gives Congress the power to regulate interstate commerce.

Yes, We Need a Marriage Amendment

Rick pointed out to me in a comment on my original post that interpretation I’ve described of the Supremacy and Equal Protection clauses would ultimately lead to the overturning of the Defense of Marriage Act. It would be found unconstitutional due to violation of the Equal Protection Clause and possibly the Full Faith and Credit Clause, which stipulates that contracts made in one state be held valid in all states2. With DOMA overturned, the whole point of this exercise—state choice on the matter of gay marriage—is lost. For this reason, I support a marriage amendment to the Constitution, just not one like the Bush administration has suggested.

I propose a marriage amendment that integrates the DOMA’s stipulations about the acknowledgement of same-sex marriages and civil unions into the constitution as an explicit exception to the Full Faith and Credit Clause. I would not support an amendment that included the DOMA definition of marriage as between a man and a woman, since I believe that is up to the people of the states or their elected representatives to decide. Passage of such an amendment would pave the way for federalist principles to govern gay marriage in America and would preserve the spirit of the DOMA. I imagine it would also face more favorable odds of passage and ratification than the marriage amendment proposed by the Bush administration.

Federalism at Work Today

Precedents exist for the successful use of federalist principles to resolve divisive or sensitive cultural issues. Obscenity, for example, has been defined based on community standards rather than national standards ever since the 1973 Miller v. California Supreme Court decision.

Medical marijuana has also benefited from a states’ rights approach—eleven states have passed laws allowing for medicinal use of the drug, with Montana becoming the most recent of the bunch last Tuesday. The federal government’s attempts to stamp out such laws have been unsuccessful, in large part because the state laws smartly invoke the Commerce Clause of the Constitution by stipulating that the pot be grown, sold, and used only within the state. Since the federal government is only empowered by the Constitution to regulate interstate commerce, the medical marijuana laws have fared well in court challenges thus far.

Other examples of federalism already at work include Oregon’s newly-embattled “Death with Dignity Act” permitting physician-assisted suicide, concealed carry laws in several states that allow residents to pack concealed firearms for self-defense, legal prostitution in Nevada, and the end of the national 55 mph speed limit that existed from 1973 to 1995. Many of these issues still crop up in the media from time to time as minor controversies, but nothing on the scale of the current gay marriage debate.

Yea or Nay? The Right’s Federalism Flip-Flop

I find it both telling and frustrating that conservative politicians have consistently come out in favor of states’ rights—when it’s in the best interests of their agenda. On issues such as school prayer and gun rights, the right has consistently favored letting the states set their own policies. When it comes to gay marriage, civil unions, or medical marijuana, however, their take on federalism is quite different.

I realize that conservatives could rightly argue that this accusation cuts both ways. The time has come for both parties to put aside the notion of federalism as a political expedient and to weigh its merit as a real governing philosophy for this nation. Carefully applied within its prescribed constitutional limits, federalism could offer a remedy for America’s deep partisan divides. It might just be an idea whose time has come again.

1Meme lineage: Bill BennettAndrew SullivanRick Brady → me.

2Unlikely, since an exception to the Full Faith and Credit Clause has commonly been made for marriage.

28 thoughts on “Federalism as a Solution to the Culture Wars: a Proposal

  1. Thanks Adam for drawing attention to this issue.

    I still don’t beleive we’ve resolved our differences over the meaning of “federalism.”  I think that when the right talks about “federalism,” they mean something entirely different than what you are describing as “federalism” in this post.  My post on this topic was a warning not to the left, but to the right. 

    May I ask why you did not take up the issue of Roe v. Wade?  Roe v. Wade would seem to be the perfect test of how far the left would be willing to take this notion of federalism as a means of achieving a truce in the culture war. 

    As we know, prior to Roe v. Wade, the legality of abortion was left to the states.  Would you be willing to overturn Roe v. Wade and return the decision to the states?  Would you support an amendment to the Constitution that would exempt abortion from the 10th and 14th Amendments?  Why?/Why not?  I think this is a crucial question.

    I, like many conservatives prefer the constructivist approach to Constitutional interpretation.  I do not see an explicit right to privacy anywhere in the Constitution (please show me…).  However, activist judges have construed a a right to privacy through evolution in case law and frankly, pure sophistry. 

    There’s an old case where the Court ruled that the NAACP did not have to release its membership lists and meeting dates/times.  The rationalle was that they NAACP had this “right to privacy” because without it, they would be denied their explicit right to freely assemble because of intimidation and fear tactics by racist whites.

    This to me is an appropriate constructivist interpretation. 

    I don’t see how you can conclude that a State establishing a church is an explicit violation of your 1st Amendment rights.  When the Constitution was ratified, most (if not all) states had officially sanctioned churches.  They didn’t seem to see a 1st Amendment problem.  A constructivist doesn’t see it as a problem either.  Even after Marbury v. Madison, when the Court started striking down legislation as unconstitutional, there was not a challenge (that I am aware of) to a State’s right to establish a church.  The people of each state decided that wasn’t a good idea.  After all, the 1st Amendment says “CONGRESS” shall make no law…

    Only now with historical interpretation of the 1st Amendment is this considered unconstitutional.  I suggest it also has a lot do with historical interpretation of the 10th and 14th Amendments. 

    The entire problem is this “historical interpretation” non-sense.  I suppose if you support a Constitutional Amendment along the lines as you suggest for DOMA, but include abortion, drugs, prostitution, state-church, etc., then I think you would find many conservatives willing to work with you. 

    The point of my post was: 1) if conservatives got the type of federalism that they are calling for, this would be a faustian bargain as it would divide our country even more; and 2) if both sides could agree on a definition of federalism, I doubt they would agree on whether it should be implemented.

  2. Whoops.  Constructionist, not constructivist.  Dworkin is a constructivist.  Definately not taking his approach to constitutional intepretation.  That slip was almost Freudian… grin

  3. The obvious problem with states having a stake in what is legal and illegal within their borders lies in that states often differ on their opinions of what is right and wrong. This sort of thinking gave rise to laws permitting apartheid. The phrase “equal but seperate” comes to mind. Not to mention the fact that the issue of gay marriage shouldn’t even be an issue. Married couples in the United States are given certain legal privileges and legal standing in the courts which is denied to same-sex couples and civil unions. Simply put, any amendment banning same-sex marriage would be easily classified as discriminatory as it denies couples certain legal privileges based on sex. Its nothing more than religious and social bigotry disguised as the “defense of marriage” or “protection of the family”. Hell, prior to the emancipation proclomation it was often argued that blacks couldn’t live in decent society so their enslavement was for their own good. We all know how that turned out. I only hope that the issue of same-sex marriage will end with less bloodshed.

  4. “Hell, prior to the emancipation proclomation it was often argued that blacks couldn’t live in decent society so their enslavement was for their own good.”

    Last time I checked, I don’t think people could choose their color.  I happen to have a good friend who lived the homosexual lifestyle for almost 15 years.  He had only one partner his whole life and had a very full and happy relationship.  Then one day he heard the Gospel and repented.  It’s been ten years and to my knowledge he has not returned.

    Another couple examples.  These FAR more personal.  When I was a young teen, I experimented with homosexuality.  I decided it wasn’t for me.  However, I could easily have either chosen homosexuality or continued pursuing both both genders.  I still find certain men attractive.

    My uncle is bi-sexual.  He only recently started “swinging” this way.  I have talked about this with him and my grandfather.  My uncle says its purely a choice, whereas my grandfather says he has NEVER had any impulses toward another male and could never “chose” to be gay or bisexual. 

    So… Is it a choice?  Is it biology?  I don’t quite know, but I know that in many (if not most) cases it is a choice.  Just ask the 1,000s of Exodus International. 

    If you are willing to say “to each her own” then I fail to see where it stops.  Would you want to see the law endorse marriage of sisters?  brothers? brothers and sisters where one has been surgically altered to prevent offspring?  What about mothers and daughters?  What about 5 women and 1 man?  What about group marriage, where 20 men marry 1,000 women?  What about… What about… What about… 

    Also, currently everyone does have equal protection under the law.  I as a man can only marry a woman.  A gay man, can also marry a woman should he so choose.  I do not have the “right” to choose to marry a man and neither does a gay man. 

    What gay rights advocates call for is a “special right.”  Would there be a “gay” test? Or would this new right be extended to any person? 

    If gay marriage was approved through a vote of the people and not by life-tenured unelected “robed ones” who sit on high and issue edicts against the overwhelming majority of Americans as if they were aetheistic mullahs, then I would have to submit to that law.  However, to FORCE a new right on me that I do not currently have will never be viewed as legitimate.

    You must do a better job convincing your friends and neighbors that gay marriage is okay and that no harm will come to society by allowing it.  Just like I and other Christians must do a better job convincing our friends and neighbors that embryonic stem cell research is depriving a human life of its 5th Amendment protections (i.e. a zygote has a “right” to life). 

    Would you all like it if a Court (imagine a Bush stacked Court) extended 5th Amendment protections to a zygote? Can you not see how pro-life activists compare the abortion debate to the Dred Scott decision?  A woman is allowed to treat a human being as “property” to do with as she pleases? 

    Then how could you ever think that the right would ever accept the arguments made by the left that the gay marriage issue is a civil rights issue?  Is it not understandable that most Americans don’t want the radical view of a minority thrust upon on the super-majority? 

    I don’t think there would ever be a super-majority in favor of extending a right to life to a zygote; however, a large minority of Americans believe this should occur.  Under Bush and with a Bush-stacked Court, this could occur.  How would you feel? 

    Just as I do not think it would be healthy for our democracy for a Court to extend 5th Amendment protections to a zygote, it would be equally unhealthy for a court to extend a right to gay marriage.

    Perhaps someone has already addressed these questions.  Would anyone be willing to direct me to a post on these issues?

    But other than all of that Neodromos, I agree:  “This sort of thinking gave rise to laws permitting apartheid.”  That’s why I say a pure federalist system that embraced constructionist constitutional interpretation principles could prove to be a faustian bargain.

  5. Good responses so far! Let me address what Rick’s saying first.

    I understand that your original post was aimed at the right rather than the left, but reading it got me thinking about how a compromise might be reached. I’m not talking about the common conservative conception of federalism or about a constructionist interpretation of the constitution. What I’m trying to do is propose a middle path that both sides might be able to agree on—one that safeguards our civil liberties and sense of national unity while still allowing a measure of regional governance in these sensitive matters.

    The phrase “historical interpretation” appears nowhere in this post. You’re thinking of the earlier version posted on my weblog, where I used the phrase in reference to the Equal Protection Clause of the Fourteenth Amendment. Here I’ve made an effort to clarify and strengthen my positions based on the critiques and counterpoints you made there.

    In this revised copy, I invoked the Supremacy Clause to strengthen my argument for the primacy of the Constitution over all other American law at every level of government. In researching this clause, I discovered that I couldn’t rightly cite historical interpretation since the Supremacy Clause is as old as the Constitution itself and has been reinterpreted several times. Instead, I cite the traditional interpretation of the relevant clauses “within the dominant paradigm of cooperative federalism.”

    That said, I see nothing wrong with looking to historical interpretation of the law for guidance in judicial decisions. The concept of legal precedent is well established in American courts and those of several other nations. It helps to maintain a consistency of judicial interpretation and prevent exactly the kind of “activist judges” you mention from getting too far out.

    Regarding a right to privacy, you are correct in saying that the Constitution doesn’t explicitly offer such a right. It is implied, however, in the Third and Fourth Amendments:

    Amendment III – Quartering of soldiers

    No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

    Amendment IV – Search and seizure

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    This is running long, so I’ll deal with the specific issue of abortion in my next comment.

  6. A couple of random points.

    I have long held the opinion that ‘gay’ and ‘straight’ are just extremes of a spectrum; it just happens that the distribution is strongly weighed towards one or the other. In other words, sorting people into one or the other category is an oversimplification.

    If you are willing to say “to each her own

  7. First, and certainly foremost, I doubt that you know of any man or woman who has changed their sexual preference. Studies have consistently shown that treatment for homosexual behavior in men and women have a success rate between zero and less than point one percent. This is negated by the fact that these studies sought to force homosexual behavior into remission through guilt, terror, and fear. Nevertheless, same-sex attraction remained throughout. One could argue that, in accordance with Christian belief, animals cannot exhibit homosexual behavior as they lack the higher faculties common to humans. This, however, is again negated by a Oregon Health & Science University School of Medicine study of homosexual behavior which indicates homosexual behavior is the result of a densely packed cluster of nerve cells in the hypothalamus known as the ovine sexually dimorphic nucleus. As for the argument that sexual preference is indeed a preference, the American Academy of Pediatrics, American Counseling Association, American Association of School Administrators, American Federation of Teachers, American Psychological Association, American School Health Association, Interfaith Alliance Foundation, National Association of School Psychologists, National Association of Social Workers and National Education Association jointly issued a document titled: “Just the facts about sexual orientation.” which concludes that sexual orientation is neither a choice nor a form of mental illness, and condemns reparative therapy as potentially harmful and of no effectiveness. Simply put, there is no scientific evidence that supports the notion that homosexual behavior is a matter of choice nor that reparative therapy, a common practice amongst conversion ministries, is effective in treating homosexuality.

    Now on to the issue of federalism. True federalism often fails as a result of conflict between local and regional interests. It was this very conflict which led to the collapse of federal systems such as Nigeria, the Soviet Union, the Federation of Rhodesia and Nyasaland, and the West Indies Federation. This conflict also resulted in two major civil wars, the United States Civil War and the Civil War of Switzerland. In response to this, almost all federalist systems have developed mechanisms such as the senate to grant the federal government extended powers to prevent secession and civil war unless, of course, the federal government is lacking the appropriate military power in which case the federalist system dissolves much like the Soviet Union. Surmise to say that federalism has failed.

  8. Neodromos: If federalism were really dead, we wouldn’t see California independently funding embryonic stem cell research, 11 states with medical marijuana laws, every state setting its own highway speed limits, etc.

    After the American Civil War, Amendments 13 thru 15 were passed to institute a system of cooperative federalism within the United States—a system wherein states’ rights are curtailed in the interest of preserving the Union. Nevertheless, the states retain (or at least should, in my opinion) a substantial amount of latitude in governing affairs within their own borders.

  9. A continuation of my earlier comment…

    I chose gay marriage for this piece, rather than other hot-button topics like abortion, because:

    (A) It’s the most visible wedge issues on the national radar at the moment
    (B) It seems particularly easy to solve in this manner, and such a solution would be likely to garner popular support
    (C) Applying the principles of cooperative federalism to the resolution of this issue would set a powerful precedent for the resolution of similar divisive social and moral issues in the future, with the positive results mentioned in my post
    (D) Addressing a host of other topics would’ve made this post too damned long.

    Rick, however, had to go and bring up the elephant in the room. wink So, let’s talk about abortion.

    If you read through the existing Amendments you’ll notice that most of them address only one or two issues, leaving as much of the Constitution alone as possible. This conservative approach to constitutional revision is wise and should be continued. As such, I can’t favor a sweeping amendment that specifies every little thing that the states can and can’t control for themselves. This would but overly narrow constraints on states’ rights by paving the way for judicial interpretations allowing states only the rights that were enumerated in the amendment. It would also dangerously empower the government to set very narrow limits on state power.

    The Constitution is a very spare document. The versions of the Constitution and its amendments available from archives.com, when printed on my computer, total only sixteen pages long. By comparison, regulatory laws like the USA PATRIOT Act (342 pages) and the 1990 Clean Air Act (over 700 pages) are epics. The Constitution employs a clever combination of specificity and abstraction; it is highly specific about the mechanics of the federal government and its interactions with the states, but it says little or nothing about precisely how such things are to be carried out. It is meta-law. This is part of the reason that it has been so effective and enduring.

    In keeping with this tradition, propose an amendment addressing only the pressing matter of gay marriage and civil unions. The courts can then determine whether the new amendment constitutes a precedent that justifies reinterpretation of existing laws and earlier precedents such as Roe v. Wade or federal anti-drug laws. A DOMA-like marriage amendment is merely a nudge down the right path. I favor greater state latitude in legislating such issues; if the judiciary decides that abortion should be left to the states, so be it. Some states will make it illegal, and other states will not—the general sociopolitical principles of my post still stand.

    Back to gay marriage: One could argue that the body of case law in existence makes the gay marriage thing a moot point. As I mentioned in a footnote, an exception has traditionally been made to the Full Faith and Credit Clause for marriage. An amendment codifying this exception might be considered redundant. On the other hand, established precedent had until recently held that the Constitution’s implied right to privacy didn’t extend to sodomy laws—something that changed completely last summer. I can understand some trepidation on the right after such a decision, and I propose a DOMA-like amendment as a compromise measure to give both sides of the political spectrum some of what they want.

    To respond to your further comments on a possible DOMA-like amendment, I have to say that I don’t buy into the slippery-slope theory of marriage. I have a love-hate relationship with the humor of Bill Maher, but he said something both insightful and funny on this topic. To paraphrase: when they amended the constitution to acknowledge the right of women and black people to vote, “activist judges” didn’t eventually extend that same right to horses, oak trees, and dinner plates.

    When you bring sibling marriages, polygamy, and group marriages into a discussion about committed and monogamous gay marriages, you’re comparing apples and Toyotas. The only similarity between the fruit and the car are that they both roll, and the only similarity between what we’re discussing and the concepts you bring up is that they presumably all involve sex. They may all be equivalent sins in your belief system, but not everyone believes the same things you do.

    The marriage amendment currently on offer from the Bush administration attempts to impose one group’s set of beliefs about what is sinful and what is not upon a nation of great diversity. This is both unconstitutional and just plain wrong. The left wants no amendment at all, and secretly hopes that Supreme Court will eventually strike down DOMA. There is a third way, and we need to look for it. That’s all I’m trying to do.

    Thanks for your comments both here and on my blog, Rick. You’ve made me think about this issue with more depth and nuance than I would have otherwise. I usually converse with others on the moderate left, and used to get all worked up when presented with diametrically opposed points of view from the right. The narrowness of the 2004 election, combined with the “move to Canada” nonsense I saw coming from some on the left, really opened my eyes. Living in an ideological echo chamber gets us nowhere. It’s honest and open conversations involving both sides—conversations like this one—that can lead to compromise and real progress.

    I hope that all made sense, it’s late and my brain is half asleep. Off to bed. I’ll be interested to see what new commentary accumulates here by tomorrow morning.

  10. One more for the road.

    Just as I do not think it would be healthy for our democracy for a Court to extend 5th Amendment protections to a zygote…

    It does my heart good to hear a conservative speak so reasonably on this thorny issue. The complications brought up by elwedriddsche represent only one reason why this is much more complex than some would try to make it.

    If gay marriage was approved through a vote of the people and not by life-tenured unelected “robed ones

  11. As long as courts could still overturn laws that were discriminatory and made by the majority against the minority (see gay marriage), I’m fine with federalism.

    Rick, given how hated and feared homosexuals still are in many parts of the country, why do you think ANYONE would willingly “choose” that lifestyle?  It brings a lot of fear and anguish to people who have had to fight against their inner selves and who had to risk being rejected by everyone dear to them to acknowledge it openly. 

    Given the intolerant climate in this country, it’s not a “choice.”  It’s a sentence.  It’s something that can still cause young people to kill themselves over, because they can’t escape what they are and they can’t live the way society insists. 

    For every nine people like your grandfather who “can’t imagine ever choosing” to sleep with someone of the same sex, there is one person who can’t imagine ever being attracted to someone of the opposite sex.  And then there are people in the middle, who can, as the Scarecrow said, “go both ways.”

    There may be people who “convert” back to living as heterosexuals because they can’t take the guilt and rejection of being who they are, but it doesn’t necessarily mean they’ve changed inside.  It just means they would do anything, even deny themselves, to fit back into society again.

    People do not need anyone’s “approval” to be gay, any more than they need someone’s “approval” to be black.  And it’s time we stopped disguising it as a moral choice, just as people used to claim blacks were genetically inferior.  It’s the same tactic of denigrating and disenfranchising someone who’s different from you.

  12. Adam, federalism is dead in that although states may still pass laws which are unconstitional they will eventually be overturned through the supreme court or by government mandate much like segregation laws were in the 1960’s. Federalism allowed for the rise of such laws but they were easily overturned by the federal government, thus, federalism is dead. We still have a sense of federalism, yes, but it is worth nothing.

  13. Just dropping in for a moment. 

    elwedriddsche: I’m not a freaking Vulcan! grin

    Take the alleged Red Herring…  I’m saying that, suppose a Court extends a right to gay marriage.  Okay…  My question is, where does it stop?  It was not a Red Herring as it is a legitimate question and one not asked with the intent on proving a point a different point against gay marriage.  I, as a concerned citizen, want to know what the implications of a Court extending a right of gay marriage would have down the road?  It is reasonable to assume that a logic based decision would find it difficult to extend this same right to any other group of consenting adults.  This concerns Americans and unless the left wants to deal with this question openly and honestly, I’m afraid you will not make much headway.  Even if both a red herring and appealing to the galley.  Take that phsycho babble to the galley of America and they will run you out of town. 

    GeekMom:  “Rick, given how hated and feared homosexuals still are in many parts of the country, why do you think ANYONE would willingly “choose

  14. Rick, does your hubris know no bounds? How dare you speak as though you are certain homosexuality can be “cured” and how dare you even suggest that you know 1000’s personally who have changed their base mental physiologies. I doubt you know of even one person whom you can be certain has changed essentially.

    And likening being ostracized because of your adopted faith to being ostracized because of sexual orientation is the pinnacle of desperation. You’ve embraced a religion that is extremely acceptable in this culture, and as such, you cannot even begin to know the folly of your words.

    What you speak of as though they are absolutes are merely your particular obsessions. Your FAITH is precisely the reason so many feel derided and disenfranchised. Stop using it as an excuse to look down on others. Stop making up fictitious numbers to justify your biases. And stop such shameless name dropping, using a god’s mention to add credibility to your bigoted mindset.

    Do you really think we can trust you to have a useful outlook on the federalism issue when you seem so lacking in other basic understandings?

    Thanks GeekMom, for thinking and speaking so generously and intelligently. Only a fool will think Rick’s perceptions are equal to yours in compassion and rectitude.

    On the subject of states rights and the issue of gay marriage, rights are awarded that should be uniformly applied without the need to earn them in such piecemeal fashion. We are the United States of America and no state is an island apart from the main regarding conferred rights. If the federal government is in the business of sanctioning personal relationships, it should not make distinctions between consenting adults. Two individuals form a union and more than two is an organization. In order to be equitable, the federal government should legalize same sex marriage or remove itself from the concerns of marriage altogether.

  15. As I’ve a bit of time I think I’d like to put to bed one of the issues here, namely, that homosexuality and bisexuality are both matters of choice. Studies have consistently shown that same-sex attraction is the result of biological defect in the hypothalamus of the brain. This argument is furthered by research showing a strong correlation between effeminate male children and homosexual or bisexual behavior exhibited after puberty. In point of fact, homosexual children have been identified in studies of children under the age of seven. These findings, of course, have been largely ignored by conversion ministries and other organizations such as Focus on Family who claim to have converted thousands of homosexuals. This, however, is moot as an in-depth review of such findings has shown that most, if not all, who were converted were not homosexual, but bisexual and while some chose to live a strictly heterosexual lifestyle, attraction to members of the same sex remained. This therapy, known as reparative therapy, has been condemned by the AMA as it has been shown to cause serious psychological harm to the patient. Surmise to say, same-sex attraction has not only been shown to be present before puberty and the onset of sexual attraction but has been proven to be the result of the ovine sexually dimorphic nucleus. Thus, it is neither a choice, nor is there any known “cure” for such behavior short of the removal of certain tissues from the brain. There is, however, another issue that I should like to address while I’m on the subject. The argument that homosexuality is not only false, but dangerous. Christians who argue that sexual preference is, in fact, a matter of preference do so not because observation tells us that it is, but because a 2,000 year old, archaic text tells us it is. The obvious danger in using this as a proof of any argument is that not only does this belief come from a group of uneducated heathens without any knowledge of science, but is the end result of a fear of something which was widely misunderstood at the time. Sadly, we have discovered the cause of homosexuality and it remains as feared and as misunderstood as it was 2,000 years ago.

    As to the issue of sme-sex marriages. The Government Accounting Office submitted a report to Senate Majority Leader Bill Frist on January 23, 2004 listing the 1,138 federal benefits and rights based on marriage which would be denied to civil unions and same-sex couples. Federalism may allow for the creation of state-specific laws banning same-sex marriages and civil unions but if a single state law prohibiting civil unions and same-sex marriage was ruled unconstitutional by the United States Supreme court there would be no need to further challenge any similar legislation as it would, in effect, be unconstitutional as well. Simply put, states may waste billions on legislation that could simply be overturned by the supreme court or allow civil unions and same-sex couples to enjoy the legal rights and privileges gauranteed them by the constitution. Personally, I think there are more important issues that should be addressed by states such as healthcare, taxes, social security, etc.

  16. I would have thought this was flogging a dead horse, but I guess if we’re facing the imminent prospect of equinecrohymenia (marrying dead horses), something better be done.

    I don’t have much to say about the legal issues, but Brock and GeekMom are spot on in their criticism of pushing the fundamentalist viewpoint on everyone.

    Rick, you say (sorry, I don’t know how to do the cool blue quote thing): “Also, currently everyone does have equal protection under the law.  I as a man can only marry a woman.  A gay man, can also marry a woman should he so choose.  I do not have the “right

  17. Sorry, in my previous post I made a brief typo which needs correction.

    “The argument that homosexuality is not only false, but dangerous.” should read “The argument that homosexuality is a choice is not only false, but dangerous.”

  18. oh, and what you said too, Neodromos.

    Unfortunately, Christians don’t have a very good record of accepting scientific findings when they disagree with Holy Writ.  This wouldn’t bother me so much (I can be as opinionated as the next gal/guy), but many of them do insist on foisting their superstitions off on the rest of us…

  19. I’ve found this discussion quite interesting.  I must say that when I was in my early teens I was essentially an evangelican Christian, but eventually I saw the light (or the dark, if you prefer) and ceased to be Christian altogether, in part because I was disgusted at the thought that so many modern Pharisees would (presumably) go to heaven while my “sinful” lesbian, Wiccan and/or atheistic friends would burn in hell for all eternity.  I felt that I could not believe in a deity that would be that jackass.
    Returning to the matter at hand, am I mistaken when I think that many if not most of the arguments put forth by the ECs are the same that were put forth over miscegenation, back in the day?  That was the end of the world, too, wasn’t it?
    I have never understood the Federal Government’s belief that it could regulate marriage, from their war on the Mormon church to today.  Where in the Constitution does it spell out the government’s power to decide what is and is not a legitimate marriage?  If 2 people or 20 people, of whatever gender or race, want to marry each other, what business is it of mine or anyone elses if those people consent to it?  The idea of a republic is that it protects the minority from mob rule.  However, this substantial mob, the ECs, has, through its organization and financial strength, accumulated significant political power which they seem to hope to use against anyone who disagrees with them, something which disturbs and angers me.  Disturbs, because I so completely disagree with them, and angers, because in essence I believe they are bullies hoping to turn the government into a big brother to do their dirty work for them.
    My main problem with Federalism is that I don’t trust state governments either.  Having lived in three Southern states in my life, I must say their legislatures seem to me to be dominated by rural bigots and nimrods who act as if Christian tolerance is when you don’t look down on Presbyterians and Methodists, even though as a good Southern Baptist you know they are not going to sit in Jesus’s lap in heaven.  I fear that allowing the states to go their own way with these controversial human rights issues may only delay conflict over them, in much the same way the Missouri Compromise delayed the War between the States.  I don’t think the ECs would be content with, say, banning abortion and gay marriage just in the red states, but would seek to make a crusade out of banning it everywhere, at the federal level.  I believe they would take measures like the Runaway Slave Act, making it illegal to travel to Free states for abortions or gay marriages, invoking the Commerce Clause to make it a Federal issue.
    Or perhaps I am taking counsel of my fears, and the ECs would be content to turn the South, Midwest and Mountain states to the rule of the Lord they so desperately desire.  In which case, I guess I’d have to move.
    If ECs are treated badly in this society, which I think ECs really want to believe, true or not, it may be because they come across as so anti-freedom.  Anyone who tells me that I do not own my body, that I cannot marry whomever I choose, that I don’t have the right to read, watch, listen to or consume that that they say is forbidden by their god- that person is no friend of mine, that person is a theocrat and I would say anti-American.

  20. Neoncat93- Amen.  Your characterization of intolerence as anti-American has a long and distinguished history, but is in sadly short supply nowadays in some circles…

  21. I’m afraid we will all continue to talk past one another….

    More movement on the federalism front.

    The New Liberal Federalism, Continued

    BTW – I do happen to know someone personally who professes to have no homosexual tendancies.  He could be lying sure.  Also, my “statistics” come from the organization, Exodus International.  You should give them a call some day and schedule a time to meet with them and discuss this with them.  I’ve heard representatives from their organization speak on numerous occassions.

    Look, “Changing” may never be possible without Christ. Whether it be biological or genetic or whatever, God has the power to undo all this.  My God is bigger than “physics” or “genetics” because he invented these things.  This sounds crazy to you, but that is because you do not believe. 

    Trust me, if I didn’t have an encounter with Christ, I certainly would be in your camp.  I would probably be leading the charge against ignorant and bigoted Christians. 

    So I do not blame you for your views.  You cannot help yourself.  Jesus asked for God to forgive His own executioners for they knew not what they were doing.  Also, I am not perfect, but I am forgiven.  Even my hubris is forgiven.  I don’t mean to be arrogant, I just mean to be a faithful and obedient servant of Christ.

  22. elwedriddsche: I’m not a freaking Vulcan!

    HarHarHar. wink

    Take the alleged Red Herring… I’m saying that, suppose a Court extends a right to gay marriage.  Okay… My question is, where does it stop?

    Why, it stops with gay marriage. Anything you introduce beyond the scope of the discussion is a red herring. Or would you prefer if I call it reverse goal post shifting?

    Granting same-sex couples the right to legally marry is either the right thing to do or not. If somebody wants to pursue other forms of marriages, they can have their own discussion.

  23. Great, a little flame war.  oh oh Just let me pull out my soapbox here…

    Please. The notion that homosexuality is solely determined by biology is just as simplistic and bigoted as the notion that it is always a matter of choice. Homosexuality is a behavior, not a brain condition or a mood. A look at sociology and history will show us that homosexual behavior can be caused by cultural or environmental factors; a look at neurology and biology tell us that it can also be caused by differences in the brain. These assertions come from credible studies that I have read about or seen information about on the news or some educational program. No, I can’t cite sources. Look it up—do your own damn work.

    Not all evangelical Christians are bigoted wackos who spend their evenings polishing their automatic weapons and kissing the Bible. “Evangelical” is a term that has been co-opted by fundamentalist Christians who would prefer a more credible-sounding identifier, especially since 9/11. Evangelical actually means:

    1. Of, relating to, or in accordance with the Christian gospel, especially one of the four gospel books of the New Testament.
    2. Evangelical Of, relating to, or being a Protestant church that founds its teaching on the gospel.
    3. stolen fundie definition intentionally omitted
    4. Evangelical, Of or relating to the Lutheran churches in Germany and Switzerland; Of or relating to all Protestant churches in Germany.
    5. Of or relating to the group in the Church of England that stresses personal conversion and salvation by faith.
    6. Characterized by ardent or crusading enthusiasm; zealous: an evangelical liberal.

    The American Heritage Dictionary of the English Language, Fourth Edition

    Yes, even liberals can be evangelical. An evangelical Christian simply believes in the importance of spreading the message of their faith to the rest of the world. I don’t agree with many of Rick’s views, but he is not as radical as you are painting him. He spends a lot of time on his weblog railing against the hypocrisy he sees among “conservatives” that have forsaken some of their core tenets and values at the expense of the less fortunate. Whether you like what he says or not, he deserves some respect for trying to create change in his party from the inside.

    Now. We do not live in red states an blue states. We liberals do not live in an “urban archipelago” of blue city-states. We live in a purple nation, and we are all Americans. As long as we keep talking at each other from our red and blue sides of the fence, no real and lasting change will be achieved in this country.

    Can’t we stop shouting at each other, Crossfire-style, about these important issues as though we expect to change one another’s minds? People on each side of the partisan divide see the world in dramatically different ways. Each side must give a little if we’re going to have anything other than political stalemates and elections won by one or two percentage points. It’s not “pandering to the red states” or “giving in to the liberals.” It’s acceptance and tolerance. It’s teamwork. It’s the American fucking Way, and I’m sick of all this partisan bullshit.

    Yes, I’m preaching. I don’t care. Call me an “evangelical moderate.”

    Now pardon me while I burn this soapbox and go back to playing Halo 2.

  24. Sorry, I’m not sure how to use the blue quote box. So please take the following as a (long) quote:

    20 I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.

    21 This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.

    22 The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty.

    23 Without looking forward to an extremity of this kind, (which nevertheless ought not to be entirely out of sight,) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.

    24 It serves always to distract the Public Councils, and enfeeble the Public Administration. It agitates the Community with ill-founded jealousies and false alarms; kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.

    25 There is an opinion, that parties in free countries are useful checks upon the administration of the Government, and serve to keep alive the spirit of Liberty. This within certain limits is probably true; and in Governments of a Monarchical cast, Patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in Governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And, there being constant danger of excess, the effort ought to be, by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.

    26 It is important, likewise, that the habits of thinking in a free country should inspire caution, in those intrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the Guardian of the Public Weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way, which the constitution designates. But let there be no change by usurpation; for, though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.

    27 Of all the dispositions and habits, which lead to political prosperity, Religion and Morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens. The mere Politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connexions with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle.

    ——-Ok, done with the quote.  Hopefully some of you already know this piece and who wrote it, but for those who don’t, this is from George Washington’s farewell address.  The purpose of my quoting this is to show how far we (Americans) have deviated from our founders’ visions of how our government should operate.  Washington was trying to warn against the upcoming divisiveness between the Federalist and the Democratic-Republican parties.  His warning failed. 

    I also post this to warn that not all acts done during an administration can easily be undone.

    I don’t have anything more to add that hasn’t already been said.  I just hope this helps put extra perspective on this thread’s topic.

  25. Adam

    By your own definition of Evangelical, the existence of an “Evangelical Moderate” is about as plausible as the existence of a Jewish Nazi. Secondly, if you cannot cite even a single credible source or proof of your argument it becomes moot. Thirdly, you argue that homosexual behavior may be the end result of cultural and enviornmental factors. This may be so, but homosexual behavior does not indicate that one is a homosexual. It is even possible to argue that one could have sex with a member of the same sex but as long as their are not ATTRACTED to members of their own sex then they are NOT homosexual.

  26. Rick- I do apologize for the sarcasm, as you have been perfectly civil.  But my content stays, and I would love to hear a response.  It is good to hear a reasoned view from the Christian camp, even if I disagree with it.

    Adam- You say America is a purple nation, and that we should stop shouting at one another, and that each side must give a little.  Amen, in general.  But this issue, gay marriage, is one of civil liberties (or what should be considered civil liberties) being denied, with no demonstrated justification, other than religion.  As Neoncat93 asks, what is the government doing in the business of regulating marriage anyway?  In such cases, I’m not willing to give even a little.  At least in principle.  Tactically, it might be necessary to consider where and how best to fight intolerance, at the state or at the federal level, but intolerance must be fought.

  27. Adam- You say America is a purple nation, and that we should stop shouting at one another, and that each side must give a little.

    To me and the probably the rest of the world, America is either a Red nation or Red and Blue. America has a long ways to go towards purpledom.

  28. Okay, let’s just pretend for a minute that homosexuality IS purely a “choice.”  So what?  Anyone who “chooses” it is still a citizen of this country, has committed no crimes, and is still deserving of equal rights:  that is, the right to marry the person they love. 

    I think a lot of people have the tendency to try to depict gay people as a separate group:  “Those People.”  They are not a separate group.  They are our friends, our children, our parents, our neighbors. 

    Oh, and Rick?  Your being “in the closet” about your religion in school isn’t even close to oppression.

    When you are approached by people who say they want to pray with you, and then beat you up for being a Christian;

    When eleven states, including your own, pass laws against your establishing any churches;

    When it’s only a couple of years ago that it stopped being a crime for you to pray even in the privacy of your own home;

    When you are described in public all over the country as being sick, unnatural, and less than human for being a Christian;

    When Christians in this country are beaten and left to die on a fence for their beliefs;

    then you can describe yourself as oppressed.

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