“States enjoy exclusive authority over family law . . . because of the fundamental role of localism in the federal design.”
—Anne C. Dailey, Federalism and Families, 143 U. Pa. L. Rev. 1787, 1790 (1995)
By David Tulis
The concept of local economy and the historic conception of marriage are plainly defended before a federal tribunal in Washington that will hear arguments April 28 in gay theory’s attack on states and the democratic process.
The arguments are set forth a brief defending the state’s jurisdiction over the definition of marriage, which homosexuals and their allies want to be seized by the U.S. supreme court and deconstructed to encompass gay unions.
Tennessee’s attorney general, Herbert Slatery, insists that nothing in the constitutional compact among the states and the federal government requires it to recognize same-sex marriages contracted in other states. Tennessee refuses to recognize the union Valeria Tanco and her lesbian paramour because to do so would be yielding its public policy and democratic institutions to the law systems of an alien state, an unwarranted “subserviency.” It need not do so because it is competent to determine for itself, through democratic process, how to define the marital relationship. Here is state government’s pwerful analysis, its brief of March 27, 2015.
“The Fourteenth Amendment allows a State to define marriage in the traditional way because the traditional definition is rationally related to a legitimate state interest.
Marriage cannot be separated from its procreative purpose, and the inherently procreative capacity of opposite-sex couples cannot be denied. Maintaining a traditional definition of marriage ensures that when couples procreate, the children will be born into a stable family unit, and the promotion of family stability is certainly a legitimate state interest. The same situation is simply not presented by same-sex couples, who as a matter of pure biology do not naturally procreate. So there exists a rational explanation for not expanding marriage to same-sex couples.”
Gays also are seeking to bring bring Tennessee’s marriage law under “heightened scrutiny” and obtain for their sexual activities special protection, but the fact that marriage is thousands of years old forbids any such necessity.
The Constitution does not compel the result petitioners seek, and the ongoing debate regarding same-sex marriage is properly left to each State. The Constitution vests each State with the power to define marriage for its own community, and our federal structure accounts for the kind of division that currently exists among the States on the question whether same-sex marriage should be recognized. Each State must be afforded the ability to best address the needs, wishes, and values of its own people. When a State has exercised its sovereign authority to establish its own policy and reaffirm the traditional definition of marriage, that authority must not be intruded upon by requiring it to give way to the policy of another State that has chosen to expand its marriage definition.
Gay theory threatens federal design
Gay theory threatens capital creation because it threatens the family and marriage. Almost as important is that it threatens the federal design, with its importance on localism, local control, states’ rights. “[W]hen petitioners and their amici urge this Court to conclude that the laws of States allowing same-sex marriage must prevail in every State, they threaten the federal design. Indeed, by asking this Court to override a sovereign State’s definition of marriage, petitioners and their amici are asking this Court to do that for which Section 3 of the federal Defense of Marriage Act was condemned in Windsor.” The Windsor decision makes clear that the Defense of Marriage Act provisions that pinched the consciences of the states that had gay marriage regimes were wrong because they violated tenets of federalism. Federalism is essentially covenantalism in which independent “sovereign” entities enter covenants of association and mutual submission.
Federalism is modeled after the biblical theory of decentralized and localized power, as in the old Hebrew republic, in which a three-part covenant existed. Namely, that among the people, their tribal leaders (and, later, the king) and God Himself, providing the standard of conduct in civil government.
Gay market’s sinking shares
In 2014 gay shares in the marketplace of public pronouncements and media coverage rode their highest wave, and Republicans and ministers were falling over themselves to sign up. But Mr. Slatery tells the supreme court that the rush of states into poofter permissiveness is hardly as great as it’s made out and that numerical claims of the gay tide are “highly misleading.” Gays say only 13 states today don’t recognize gay marriage, meaning 38 states and D.C. do. But of those only 17 states have turned LGBTQ by legislative enactment or plebiscite. The rest were coerced into their effeminacy by federal opinions. Thirty states enacted marriage defense laws. Marriage is hardly an anachronism, and is at best a cultural dispute that has divided the states. The gay mudslide is a mud trickle, perhaps.
Tennessee state government, in protecting marriage in Chattanooga and surrounding areas, argues that for New York to go gay doesn’t require Tennessee to go gay as well under the 14th amendment, given that Tennessee has “equal sovereignty and power over the subject at hand.”
Ms. Tanco and her lover and their lawyers merely carp about alleged harms the couple suffered in moving to Tennessee. “It is New York and California, among other States,” Mr. Slatery alleges, “that have altered the legal landscape by recognizing same-sex marriage. That is their right and prerogative, of course. But petitioners cannot rightly point to that shift and use it as the basis upon which to insist that Tennessee, which had no voice in those decisions, must now give way. *** [T]he Tennessee Supreme Court has acknowledged that “[t]he legislature has, beyond all possible question, the power to enact what marriages shall be void in its own state, notwithstanding their validity in the state where celebrated.” Pennegar v. State, 10 S.W. 305, 306 (Tenn. 1889)
Marriage is part and parcel of the ideal of local economy, free markets, self-determination, the right of a people to establish their own government under God’s law and of their own choosing. That is why Christians should follow closely developments in Nashville, Cincinnati and Washington, D.C., that touch on this vital Christian interest. Christian interest, yes, but human interest, even more broadly.
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