Gay Marriage and the Death of States Rights

Gay Marriage and the Death of States Rights

Derrick Wilburn

In August of 2014 I authored a column that was published on American Thinker titled, "Gay Marriage – the Chicken or the Egg." Well-researched (say so myself, if I may) and documented, the column offered substantive evidence to back up the truth that America is being overwhelmed by homosexual marriage not as a result of some titanic swing in public perception or acceptance but rather as a result of one tidal force acting virtually in isolation -- the court system.

Americans in state after state after state have soundly rejected the idea of legalized same-sex marriage yet state after state after state began adopting legalized homosexual marriage laws because a very small number of people, typically just one or two judges, saw fit to discard the will of the people as expressed at the ballot box by tens of millions. As these judges began ruling in defiance of the people the will of the few began its triumph and the toppling of states laws and constitutions began, culminating the ultimate judicial-over-populace blow just last month. Now just five people (Justices Ginsberg, Sotomayor, Kennedy, Kagan, and Breyer) have done at the federal level what judges at the state level began practicing around a decade ago.

To say the Supreme Court's decision characterizing homosexual marriage as a constitutionally-protected right is disturbing on a number of levels could be the understatement of the decade. Conservatives from coast-to-coast are bemoaning the decision as an assault on traditional values and religious freedom and liberties.

Americans from are now pondering whether churches could lose tax-exempt status for refusing to recognize the Supreme Court's ruling; what happens when and if a Christian university that provides married student housing does not adopt its policies to do the same for same-sex married couples; what happens when a Christian-based child adoption agency declines to place children with same-sex married couples; what happens when three (or more) consenting adults claim their right to marry is constitutionally-protected, the latter two scenario both presented in Chief Justice John Roberts' dissenting opinion.

These and myriad other legitimate reasons to be critical of the Court's ruling can be found but perhaps the most troubling point of view isn't directly related to the actual sanctioning of same-sex marriages at all. It has to do with the disposition of the Court itself which more and more is in keeping with that of Washington D.C. itself, an increasingly apparent attitude of "Washington knows best."

This court has been sending a broad and consistent message that it is decidedly anti-states' rights. That the power to self-govern, to manage one's own life lies increasingly more and more with the federal government and decreasingly with the states. This is a trend which, regardless how one feels about homosexual marriage, we should all find deeply troubling.

Five people have singlehandedly made the decision to order every state in the USA to issue marriage licenses to all same-sex couples seeking one thus abandoning the model of residents of each state making their own rules. Prior to the Supreme Court's new heavy hand if a resident of state X were to decide, "This place has gotten too liberal (or conservative) for me, I'm outta here!" they could pack up and move to state Y where the legislative climate were more to his or her liking. I'm a living example, finding the public education system not to our liking and level of taxation to be overburdensome, my wife and I joined the millions plus strong bandwagon and became California escapees. As it relates to same-sex unions the Supreme Court has robbed U.S. citizens of that particular ability.

Over a year ago, voters and legislators in the state of Texas passed tough new laws that protect the life of a viable child during the third trimester of pregnancy and require Texas abortion facilities to operate like hospital-style surgical centers. Imagine that -- expecting a place that provides surgical procedures to operate like places that provide surgical procedures. Needless to say the rabid, 'kill 'em all' pro-abortion left threw a fit (Texas has a way of doing that do them on a regular basis) and immediately began filing lawsuits. One of those legal actions eventually landed on the doorstep of the Supreme Court and just few days after its ruling on homosexual marriage the SOCTUS issued an order blocking Texas from enforcing the laws it duly passed. The order was passed via a(nother) 5-4 vote with Chief Justice Roberts, and Justices Scalia, Alito, and Thomas dissenting. The one paragraph order forces Texas to keep its laws at bay until the Court decides whether or not to rule on them. The Court did not explain in the order why they were postponing the new provisions. Thus within a six-day span we had two actions by the Court information states, "You do not rule yourselves, we do."

How or where does this end? Right now, states set their own income tax rates, retail sales taxes, vehicle licensing and registration fees, states control and set the parameters, fees, licensing requirements, etc. for real estate agents, massage therapists, establishments that sell liquor, marijuana legalization, on and on. Why have state legislative bodies and state-level ballot initiatives at all if we can simply allow Washington to set all these things up? Because Thomas Jefferson, John Hancock, and a collection of others knew that to be a bad model of governance, and could foresee a future when such would need to be placed into check and did so via the Tenth Amendment.

The framers of our republic were wise. Having rebelled against a "You over there will do what we over here say" system they recognized that a top down, one-size-fits-all" form of government would not produce the kind of liberties and sovereignty they sought. I believe they'd view having states beholden to the will and whim of Washington to be a micro version of colonies beholden to the will and whim of the crown. The Tenth Amendment to the U.S. Constitution provides a doctrine and strategy by which the rights of the individual states are protected --by the Constitution -- from interference by the federal government. The "Reserved Powers" portion of the Tenth Amendment reads rather simply for such a profound document, "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." The erosion of the power of the Tenth Amendment should be of grave concern to all Americans, one can't help but believe that "the people" in this amendment is not specifically referring to just five of us.