National Marriage Equality Legislation Needed

Marriage equality for same-sex couples gained momentum recently as a federal district court ruled unconstitutional the anti-equality California Proposition 8 passed by voters in 2008, and the state legislatures of Washington and New Jersey, and the Maryland General Assembly, passed bills that would legalize marriage for same-sex couples. The Maryland bill now heads to a vote by the full Senate. Washington Governor Chris Gregoire (D.) signed the bill into law, and Maryland Governor Martin O'Malley (D.) praised the legislation and has committed to signing it once it reaches his desk. New Jersey Governor Chris Christie (R.), who has publicly opposed marriage equality, on the other hand, vetoed his state's bill while arguing that the citizens of New Jersey should vote on the issue, which he asserted "represents a profoundly significant societal change."

A number of politicians assert that the issue of marriage for same-sex couples must be left to the individual state legislatures or to the voters to decide, because this falls under the category of states' rights or "majority rule," and that the national government should not intrude by imposing its will on the states in this matter.

I argue most emphatically that marriage rights in general and, more specifically, legalization for same-sex couples indeed represent a federal issue, and that national legislation or a Supreme Court decision must enforce the Fourteenth Amendment of the U.S. Constitution, which mandates that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws." Since different-sex couples, upon reaching legal age, are accorded the rights and benefits of marriage, the current 30 states with state constitutional amendments legitimizing marriage only "between a man and a woman" effectively deprive same-sex couples of "equal protection of the laws."

So then, should the civil and human rights of minoritized peoples be placed up for a vote or left to the discretion of state legislatures? In other words, should the majority determine the rights of minorities?

Take the following cases for example:

• If the issue of prohibiting the practice of slavery had not been settled in Lincoln's 1863 Emancipation Proclamation and later codified in the U.S. Constitution, and was instead left to the individual states or to a majority vote, I question whether the states would have uniformly voted on their own to outlaw the practice of slavery, and I indeed believe that the practice of legalized slavery would have continued long after the Civil War in some states.

These questions once again remind me of the concept of "tyranny of the majority," articulated in the 1830s by Alexis de Tocqueville, a French political scientist and diplomat, who traveled across the United States for nine months between 1831 and 1832, conducting research for his epic work, Democracy in America. Though he favored U.S.-style democracy, he found its major limitation in its independent thought and independent beliefs. In a country that promoted the notion of "majority rule," this effectively silenced minorities. This is a crucial point because in a democracy, without specific guarantees of minority rights, there is a danger of domination or tyranny over others whose ideas, values, and social identities are not accepted by the majority.

The founders of this country provided a mechanism for the protection of minorities against the tyranny of the majority. The checks and balances between the three branches of government: executive, legislative, and judicial, and the authority of national legislation over the individual states, have been shown time and again (though not perfectly, of course, and not without major adjustments and reversal of policy along the way) to offer some form of protection for minority rights and benefits. If we leave these important issues of social justice and social inequality to majority rule and to state legislatures alone, then many of the evils that have plagued this country throughout its history would continue to this very day.

Returning to the issue of marriage for same-sex couples, state laws currently on the books, as well as any proposed national legislation, will not compel religious institutions to perform religious marriages if they are opposed, for they do and will continue to have an exemption. Religious institutions will continue to set their own standards for conducting marriage ceremonies as they always have, without fear of prosecution if they decide that marriage for same-sex couples falls outside their teachings.

The current state-by-state patchwork quilt of statutes not only serves to keep same-sex couples in marriage limbo and second-class citizenship status, and deprives us unfairly and inequitably of "equal protection of the laws," but it's also costly in terms of time and resources to all parties involved in political educational campaigns, litigation, and in the legislative process. Though I do not hold out much hope that the current Congress will do the right (correct) thing by passing national legislation, I believe that in the context of a massive grassroots efforts, either the next Congress or the Supreme Court with make marriage equality a reality.