federalism and gay marriage

Don Herzog over at Left2Right has a nice post on the supposed reasons to oppose gay marriage and their mutual incompatibility. He says there are three basic arguments:

1. Family law belongs to state governments. But it’s outrageous for state courts to rule that gay marriage is constitutionally required. That decision belongs to the people or legislatures of each state.
2. “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” That’s Art. 4, sec. 1 of the Constitution. If one state marries gays, it looks like other states would have to recognize those marriages.
3. Same-sex marriage is wrong, period. Marriage must be between one man and one woman.

Now if you are a strong proponent of federalism, then (1) makes sense. However, many people hold (3) but then try to argue (1) while at the same time saying there should be a constitutional amendment to prevent the situations arising from (2).

In fact, I was at a party last year where I was arguing this case with someone and it was clear that they thought (3) but instead were making some specious claims about the state having a vested interest in making babies. When pressed further on that they retreated to (1) with a sprinkling of (2) for justification. I viewed it as a minor success that I could talk them out of the constitutional amendment.

Of course, an arsenal of counter-arguments is only half the battle. But arguing the benefits is much easier, I think. Unless you’re CNN of course. Sometimes the Daily Show makes me hate the world.

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