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DanS

State Of Same-Sex Marriage In 2012.

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This past weekend was Pride weekend, and several cities, including Chicago, New York, and San Francisco, mounted parades to mark the event. The advent of same-sex marriage has been in the news lately and likely will be again, so I think it's a good time to take a look at where gay marrieds stand as opposed to where they were a few years ago.

 

The picture is multi-faceted. On the one hand, almost half of the US population currently lives in states that allow some sort of civil union between homosexuals, if not outright marriage. On the other hand, over half the states in the union have outlawed gay marriage not only by statute but by an amendment in the state constitution, which is far more difficult to get around. For all the talk of the progress the gay rights movement has made in the past ten or so years, there's still a very long way to go.

 

Take a look at this infographic showing the state of gay marriage in the US today. It's got information on the rate of gay marriage, the rate of gay divorce, and a map of where it's allowed, where it's outlawed, and how it's outlawed. What do you guys think?

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In our federalist system, why can't we let the states experiment when it comes to large changes in social policy? The whole point of having 50 different states is to honor the choices of the citizens of those states to be governed in the manner they wish to be governed. States experiment all the time: New York and Illinois have significant home-rule laws allowing their major cities to decide many policies that cities and towns elsewhere cannot; California and Colorado are testing out medical marijuana legalization; Massachusetts was a pioneer in health care policy testing out an individual mandate; North Carolina and Virginia have tried spurring economic growth by liming the influence of labor unions with "right-to-work" policies; and so on.

 

Why not let the few states that have made attempts to recognize same-sex relationships continue with their efforts? The great part about 50 different laboratories to test policies in is that a policy which fails doesn't cause much harm in other states. If same-sex marriage is a good policy, then the experimenting states will see benefits that will (a) encourage people and businesses to move there and (B) encourage policymakers in other states to join the experiment to reap the same benefits. If same-sex marriage turns out to be bad policy, then the damage from the experiment will be limited, rather than nationwide. Even President Obama said the states should decide on their own.

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Maybe I'm just an odd person, but I'm confused as to why I should give a damn about what people do with each other if it doesn't affect other people adversely. Also, I'm willing to bet that legalizing gay marriage on a federal level will fuck up marriage less than TV shows like "Bridezillas" and the entire atmosphere around marriage that focuses on the material aspects rather than actual connection between people. If anything, by mainstreaming gay marriage, straight marriage will taint and ruin it similarly since the motivations behind gay marriage are more of wanting to have a legal connection that reflects the personal connection between two people.

 

Ian, I do agree with you that federalism tends to be good for testing policy on smaller scales, and since the legalization of gay marriage in several states, there hasn't been any major bad results if any at all. Perhaps widespread federal action to legalize gay marriage isn't necessary, but at the very least there should be legislation repealing at least a part of the defense of marriage act OR there needs to be a ruling that the law violates the full faith and credit clause of the constitution (because it totally fucking does). I mean, it's great that now gay couples can get federal benefits since the boston circuit court ruling, but when they're restricted to states that will legally recognize their marriage, there's a bit of oppression going on there and they aren't able to exercise themselves as US citizens. It's kind of a convoluted segregation.

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In our federalist system, why can't we let the states experiment when it comes to large changes in social policy? The whole point of having 50 different states is to honor the choices of the citizens of those states to be governed in the manner they wish to be governed. States experiment all the time: New York and Illinois have significant home-rule laws allowing their major cities to decide many policies that cities and towns elsewhere cannot; California and Colorado are testing out medical marijuana legalization; Massachusetts was a pioneer in health care policy testing out an individual mandate; North Carolina and Virginia have tried spurring economic growth by liming the influence of labor unions with "right-to-work" policies; and so on.

 

Why not let the few states that have made attempts to recognize same-sex relationships continue with their efforts? The great part about 50 different laboratories to test policies in is that a policy which fails doesn't cause much harm in other states. If same-sex marriage is a good policy, then the experimenting states will see benefits that will (a) encourage people and businesses to move there and ( B) encourage policymakers in other states to join the experiment to reap the same benefits. If same-sex marriage turns out to be bad policy, then the damage from the experiment will be limited, rather than nationwide. Even President Obama said the states should decide on their own.

 

 

I mean, you're right in most instances about 50 individual laboratories to test policy, but we've already run the experiment of having civil rights issues (including slavery) left up to the states before. It hasn't worked out okay. Only the supreme court can establish and enforce basic civil rights and freedoms across the whole country. Your rationale would still allow Mississippi's miscegenation laws to remain in place under a confederate flag.

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Perhaps widespread federal action to legalize gay marriage isn't necessary, but at the very least there should be legislation repealing at least a part of the defense of marriage act OR there needs to be a ruling that the law violates the full faith and credit clause of the constitution (because it totally fucking does).

 

Not quite. The complete clause says "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." (Underlining mine) So the federal Congress can determine what effect (if any) a same-sex marriage from one state must have in another state. In the Defense of Marriage Act (DOMA), Congress did just that and used its power under this clause to say that states did not have to honor out-of-state same-sex unions. So, states may honor out-of-state unions, but are not constitutionally required to under Full Faith and Credit.

 

I mean, you're right in most instances about 50 individual laboratories to test policy, but we've already run the experiment of having civil rights issues (including slavery) left up to the states before. It hasn't worked out okay.

I'd argue the opposite is true. When the United States was founded, slavery was the norm. Even though it wasn't as popular in the northern states as the southern ones, it was still generally legal and not seen a human rights violation in most of the country (indeed, most of the world). The experiment was in abolishing slavery, and that experiment (decades after it began) was ultimately successful. There remain many civil rights issues for which federal law is silent or that are left largely to the states, including welfare, educational equality, capital punishment, voting registration and process, labor union powers and membership, professional licensure, parental rights and responsibilities, and marriage.

 

Is it possible to declare same-sex marriage successful in the few states that have experimented with it so far? The experiment is less than a decade old and the largest state to try it (California) reversed course less than six months later. Since 2004, when Massachusetts became the first state to try it, only five more states have joined the experiment and kept with it. But 39 states have laws (statutes or constitutional provisions) banning same-sex marriage entirely. That's more than a 6-to-1 ratio of states that do not want to try the experiment to states that are participating. Hardly a roaring success that warrants federal intervention so far.

 

Only the supreme court can establish and enforce basic civil rights and freedoms across the whole country. Your rationale would still allow Mississippi's miscegenation laws to remain in place under a confederate flag.

Congress too can, and has, made significant contributions to "establishing and enforcing basic civil rights and freedoms across the whole country" (see, e.g., the Civil Rights Acts and the Voting Rights Act). Also, recall that it was Congress, not the Supreme Court, that got the ball rolling on outlawing slavery; the Court had upheld slavery prior to the 13th Amendment.

 

I don't think I need to defend anti-miscegenation laws in order to remain consistent. Note that the Supreme Court upheld anti-miscegenation laws the first time it heard a challenge in Pace v. Alabama, 106 US 583 (1883). It wasn't until 1967 in Loving v. Virginia, 388 U.S. 1, that the Court changed gears and joined what was by then the majority of states that had already outlawed race-based marriage bans (only 16 states still had such laws by the time of the Loving decision and even fewer enforced them seriously). The Court sided with more than a 2-to-1 majority of states then; is it really time to declare the same-sex marriage experiment complete when six of every seven states remain against your position?

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