Avatar of admin

by

Federalism Is Beside the Point in Gay Marriage Lawsuits

March 25, 2013 in Economics

By Ilya Shapiro

Ilya Shapiro

Some libertarians are conflicted over what the U.S. Supreme Court should do when presented with challenges to state laws that don’t allow for same-sex marriage. While consenting adults should be allowed to do whatever they want if it doesn’t harm others, isn’t family law a core function of state sovereignty with which the federal government—including the judiciary—shouldn’t interfere?

That intuition isn’t surprising, because libertarians generally like federalism. Particularly in this age of an over weaning federal government and unaccountable executive branch, we pound our pocket Constitutions and demand respect for the Commerce Clause, the 10th Amendment, and other structural protections for liberty.

Indeed, federalism “is more than an exercise in setting the boundary between different institutions of government for their own integrity,” wrote Justice Anthony Kennedy for aunanimous Supreme Court in the 2011 case of United States v. Bond (which is returning to the Court this fall). “By denying any one government complete jurisdiction over all the concerns of public life,”Kennedy continued, “federalism protects the liberty of the individual from arbitrary power.” If the federal government acts outside the scope of its delegated and carefully enumerated powers, then it’s no better than an armed mob.

Some libertarians are conflicted over what the U.S. Supreme Court should do when presented with challenges to state laws that don’t allow for same-sex marriage.”

I’ve therefore been proud to file federalism-based briefs on the Cato Institute’s behalf on issues ranging from the civil commitment of sex offenders to Obamacare’s individual mandate to the Voting Rights Act. I yield to no one in fighting to keep the federal government within its constitutional bounds.

And yet all thatfederalism talk is an irrelevant red herring when it comes to gay marriage because there’s no claim here that the federal government is exceeding its lawful authority. Instead, in Hollingsworth v. Perry, the plaintiffs argue that California’s Proposition 8 improperly denies them the fundamental right to marry under the 14th Amendment.

In other words, Perry involves claims that a state government is violating individual constitutional rights, not that the federal government is exercising powers it doesn’t have.

The lawsuit isn’t some novel invention designed to avoid implicating the Constitution’s structural provisions, but the sort of thing that libertarians get behind without controversy in areas ranging from gun rights to property rights to the right to be free from unreasonable search and seizure. And just as …read more
Source: OP-EDS

Leave a reply

You must be logged in to post a comment.