Should Marriage Be Left To The States?

My short answer is "no", but let me explain. Before answering what I think the situation should be, it is helpful to look at what the situation is. Currently family law is a matter left to a great extent to the states. States have the power to decide who may marry, the legal process required to do so, and what the legal consequences of that marriage are within the state. In all these matters states differ from each other. The state is limited in its actions, though, to the requirement of its own constitution as well as the constitution of the United States. What those constitutions require is often a matter of great debate, but the ultimate judge is the state's highest court for matters pertaining to its own constitution, and the Supreme Court of the US for matters in the US Constitution. In either case the constitution can be amended by a process laid out therein. So, for example, the US has ruled that a state may not forbid interracial marriages, or forbid inmates from marrying (except under compelling reasons). I am not aware of any argument claiming that the US Constitution currently forbids same-sex marriage, although there are arguments that it requires it either as matter of a fundamental right to marry, or as a matter of equal protection. It has been noted that the federal government has banned polygamy, but I don't believe this is quite true. The US Congress is ultimately responsible for the laws in DC and the territories. It thus banned polygamy in Utah when Utah was a territory. The Congress also the power to decide whether to admit a new state to the Union (both these powers are in Article IV, Sec. 3). Thus Congress refused to admit Utah to the union unless it's state constitution perpetually forbade polygamy. If Congres had thought it had the power to ban polygamy in the states, this would not have been necessary.

There is also the issue of section 1 from the above Article IV which guarantee Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. (Section 2 could also lead to some issues, but as it has been interpreted these issues seem minor). Here is briefly my understanding of how the SCOTUS has interpreted that clause, based primarily on my reading from Andrew Koppelman's book (see left sidebar) which devotes all of chapter 5 to this subject. Fulll Faith and ...

... middle of paper ...

...ough a process they decided upon. As I said, I'm not a big fan of the state as sovreign concept, but it's what we have right now. Unless we are going to abandon that concept, it is up to the state to deal with matters of how their own constitution should be interpreted. Other than prohibition (which many say in hindsight was a terrible idea) the only time we limit what a state can do within its own territory is when otherwise it would violate the right of an individual as a US citizen.

In summary, if I could write the constitution as I saw fit, states wouldn't have rights and marriage policy would be set by the federal government. If we are going to leave marriage policy to the states, as the constitution currently does, I see no reason to carve out an exception for same-sex marriage. States already have the requirement to provide equal protection in all of their laws including marriage, and I believe this would require same-sex marriage. I have no problem with somebody pushing for an amendment to the constitution if they see a change as necessary. I would hope the amendment would be narrowly tailored, though, to address the specific problem or problems it is designed to address.