My colleague right here at PJ Media, Scott Ott, wrote an article yesterday in which he argues that conservatives should “rejoice at the Supreme Court same-sex marriage ruling.” His argument is quite simple: the Bible shouldn’t be legislated. In the end, government should withdraw from the marriage business altogether, and this ruling allows conservatives to call for that.
Although I agree with Scott that neither the federal government nor individual states should issue marriage licenses — marriage is something between people and possibly between two people and their God, not between them and their government — that doesn’t mean conservatives should “rejoice” at the illegal SCOTUS decision.
The opposite is true, even. This case wasn’t about same-sex marriage, but about federalism. The idea behind federalism is that the individual states gave the federal government certain powers. The 10th Amendment of the U.S. Constitution then says that all those powers not delegated to the federal government are left to the states.
Nowhere in the Constitution did the states give the federal government any power over marriage; not to define it, and not to forbid states from doing so. This means that the 50 states can do whatever they want. If they don’t want to define marriage they can do so; if they do want to do so, that’s perfectly fine too.
SCOTUS’ decision isn’t problematic because it allows gays to marriage as such. It’s controversial and extremely troubling because it destroys federalism — the system America is built on.
I’ve argued for a long time that conservatives and libertarians have to choose a different approach to marriage: argue for completely pulling the government out of people’s personal relationships. No more subsidies or what not for married people, only for individuals. If they are married, fine, to the government they’re still individuals. This also means that individual states have to stop giving marriage licenses to married couples. Those who want to marry can do so in a private setting, in church, a synagogue or a mosque. However, if they get anything from the state government it should, at most, be a civil union contract. Churches that want to “marry” gay couples can do so, those who don’t want to do that are also free to follow their conscience. In either case, no government has anything to do with it.
None of that, however, means that SCOTUS’ ruling should be celebrated by anyone. If the court respected the Constitution it should have said that this issue is left to individual states, and that they can do whatever they want. Like Justice Roberts, his colleagues could’ve argued that they’re in favor of legalizing gay marriage on a state level, but that it’s none of the federal government’s business.
The Supreme Court didn’t just legalize same-sex marriage, it abolished the 10th Amendment — one of the most important amendments of the Constitution because it serves as the foundation of federalism, the most important check on the power of Washington D.C.
Frankly, I don’t see any reason why the federal government can now not do whatever it wants to. The Supreme Court has nullified the 10th Amendment and, with it, federalism. This essentially means that the system has been turned upside-down: from now onwards, states derive their power from the federal government, not the other way around.
Unlike Scott, I don’t see why conservatives (or libertarians!) should rejoice at that ruling. Instead, they should be angry and sad — not because gays can now marry, but because federalism is no more.