I am generally supportive of allowing states great latitude in how they approach various issues. That's federalism, after all, and is one of the great principles underlying our system of government.

That said, here is an example of why the gay marriage issue cannot be left to the states -- the problem of the recognition of such marriages in states which prohibit them under their own laws.

Gov. David A. Paterson has directed all state agencies to begin to revise their policies and regulations to recognize same-sex marriages performed in other jurisdictions, like Massachusetts, California and Canada.

In a directive issued on May 14, the governor’s legal counsel, David Nocenti, instructed the agencies that gay couples married elsewhere “should be afforded the same recognition as any other legally performed union.”

The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses.

In a videotaped message given to gay community leaders at a dinner on May 17, Mr. Paterson described the move as “a strong step toward marriage equality.” And people on both sides of the issue said it moved the state closer to fully legalizing same-sex unions in this state.

Yeah, all it takes is one official issuing a directive and gay marriages are recognized -- even if the legislature has explicitly declined to permit them to be performed within the state. The public policy decisions of one state -- whether made by the elected branches of government or a rogue court -- can effectively drive the policy of the other 49.

The Defense of Marriage Act, passed with great support over a decade ago, may not be sufficient to protect the right of those states that reject gay marriage to set their own policy on the matter. All it will take is one federal judge to declare the law unconstitutional to open the floodgates. As the Constitution stands now, federalism is not the answer.

That is why there needs to be some sort of amendment to the US Constitution on the matter. And I'm not necessarily arguing for an amendment to ban gay marriages nationwide. Rather, I'd like to propose a compromise which sets the Defense of Marriage Act into the Constitution itself as a tool for protecting federalism. Don't define marriage per se, but simply state that noting in the US constitution requires a state (or the federal government) to recognize marriage as anything other than one man and one woman. Then the decision of California's courts will truly be California's problem -- not one for all 50 states.

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Posted by: Greg at 10:14 PM | No Comments | Add Comment
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