Editor’s note: A reader pointed out that a recent CNN/ORC poll puts Americans’ support for the legality of same-sex marriage at 63 percent, higher than Gallup’s 55 percent from a May 2014 poll.
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The South is a different world. Throughout America’s home-of-the-free, all-men-are-created-equal history, one need only take a couple seconds’ pause from the flag-waving and self-praise to remember: Oh yeah, the South. That place where equal rights progress has faithfully lagged behind the rest of the country decade in and decade out. That part of the country that systematically asserts its right to deny your rights. And like clockwork, the South is back again to wave its governmental fist at the plight of another group: same-sex couples.
To be sure, the South’s anti-gay stance has always been strong — the new phase of opposition is just more formal. Alabama, one of the nine southern states that still cling to bans on gay marriage is currently denying the orders of a federal district court judge to issue marriage licenses to same-sex couples after the court ruled last month that Alabama’s ban on same-sex marriage is unconstitutional. In a standoff-esque twist, the Alabama state supreme court’s chief justice ordered the state’s probate judges — who are in charge of issuing marriage licenses in Alabama’s 67 counties — to disobey the federal ruling and refuse licenses to same-sex couples. In Alabama, it’s government vs. government. Who has the right legal argument? What will the standoff ultimately mean for gay rights? To understand the issue, we need to know about a concept called “states’ rights.”
What are “states’ rights”?
In this country, we have a federal system of government — that means we have the federal government which oversees national policy, and state governments that control more specific matters in states. Since people are affected by both federal and state policies, the two often come into conflict. Southern states have differed from the rest of the country since the days of slavery, and through the bitter fight up through the Civil War and beyond, the South argued that if the federal government acts in ways that (in the South’s opinion) breach the Constitution, southern states can disobey federal laws. The problem is that those states interpreted the Constitution in backward ways.
In the 1960s, Alabama Governor George Wallace stood in the doorway of a University of Alabama auditorium to oppose the integration of African-American students into schools— literally standing up against National Guard troops to assert his belief that the federal government has no right to force states to treat citizens equally. In 1990, Governor Fob James went as far as to say that the Bill of Rights doesn’t apply to states. Claims like this are usually based on a vague idea of the 10th Amendment.
What does the Constitution say?
The 10th Amendment provides a framework for states’ rights by saying that “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.” What that means is that if the Constitution doesn’t authorize the federal government to do something, and if it doesn’t prevent a state from doing something, then the state is free to do as it pleases.
What it doesn’t say is that states can simply throw their hands up and disobey federal law when they feel like it. And although segregationists have long drawn up convoluted arguments as to why the Constitution doesn’t require equal protection under the laws, any middle-schooler with eyes can tell you that “No State shall….deny to any person within its jurisdiction the equal protection of the laws” means that no state can deny equal protection of the laws. And the Supremacy clause clearly dictates that states must obey any part of the national Constitution and federal laws made under it.
“States’ rights” is really just a charade.
The idea that states can override federal decisions is impossible to logically support based on the Constitution, and somewhere in their heads, states’ rights advocates have probably always known that. The states’ rights argument is really just a thin attempt at justifying conservative stances in the South that conflict with what liberal policymakers or judges decide. If the federal government isn’t doing what you want, throw up the states’ rights banner. Immigration policy not tickling your fancy? States’ rights. The thought of Obamacare forcing new Medicaid coverage keeping you up at night? States’ rights.
You’d be hard-pressed to find a situation in which liberals have fought so hard to oppose the federal government. State marijuana laws run counter to federal drug laws, for sure, but the success doesn’t lie in an argument that the federal law is unconstitutional — it’s just that the Obama administration has effectively let it slide. Legally, a questionable move — but the marijuana debate hasn’t produced a chest-bumping argument about states being the true purveyors of the law, the way anti-gay advocates in Alabama, and the state in general, so often has.
How will the issue turn out going forward?
As public opinion on same-sex marriage continues to tip — 63 percent of the country now supports it, according to recent polling by CNN and the Opinion Research Corporation — the country is going to have to get on the right side of history, and the right side of the law, yet again. Same-sex marriage is now effectively legal in 37 states, and 48 of Alabama’s 67 counties are issuing marriage licenses in defiance of the Alabama Supreme Court, standing with the federal decision. With the U.S. Supreme Court set to decide same-sex marriage’s legality nationwide by the end of this June— and having just denied the Alabama chief justice’s request to halt the proceeding of same-sex marriage in his state— the issue looks like it’ll be decided in favor of equality once and for all. And states, the South included, will just have to follow suit.
Contact Opinion Section Editor Ellis Arnold at ellis.arnold@colorado.edu.
