WHY MARRIAGE CAN'T BE LEFT TO THE STATES: Jeff Jacoby

AN ISSUE as urgent as the future of marriage in America deserved more than the three minutes CBS newsman Bob Schieffer allowed it during last week's debate between President Bush and Senator John Kerry. And it deserved a more thoughtful introduction than Schieffer's irrelevant question about whether "homosexuality is a choice." (Do we debate issues of religious liberty by first asking if "religion is a choice?") Even so, in their brief exchange on what may turn out to be the most critical social question of the next four years, Bush and Kerry each said something significant.

The president explained why a constitutional amendment is the only option for those who want to preserve the timeless understanding of marriage as the union of a man and a woman. There is already a federal law on the books -- the 1996 Defense of Marriage Act -- that purports to do just that. "But I'm concerned that that will get overturned. And if it gets overturned, then we'll end up with marriage being defined by courts, and I don't think that's in our nation's interests."

Kerry, who claims to oppose same-sex marriage but who voted against the Defense of Marriage Act, replied that there is no reason to treat marriage as a federal issue. "With respect to DOMA and the marriage laws, the states have always been able to manage those laws. And they're proving today -- every state -- that they can manage them adequately."

Kerry's call for leaving marriage to the states echoes the old segregationist argument that the federal government had no business interfering with the states' handling of race relations. Now as then, "states' rights" is a smokescreen for the protection of something most Americans find objectionable: Jim Crow in the 1950s and '60s, same-sex marriage today. And just as state sovereignty was not permitted to override the compelling national interest in racial equality, it cannot be allowed to override the compelling national interest in preserving the definition of marriage that Americans have always embraced.

In any event, it simply is not true that the US legal system has always left marriage to the states.

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posted by Eve at 5:32 PM | link

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