Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment
by: William N. Eskridge
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Subsidiarity and the Same-Sex
is a strong liberal argument against amending the U.S. Constitution to ban
same-sex marriage, and we're all familiar with it: GLBT people are people
who deserve equal justice under the law, and we should not break our long
constitutional tradition of expanding freedom by inserting discrimination
into the U.S. Constitution for the first time in our history. While this
may be the best argument against banning same-sex marriage and the one that
our community emphatically endorses, we must realize that this argument
does not carry much weight with conservatives. Many conservatives do not
believe that our love - which they almost universally think of in exclusively
sexual terms - deserves equal justice under the law. Confronted with this
reality, the question for us becomes: is there a conservative argument to
be made against an amendment to the U.S. Constitution banning same-sex marriage?
Such an argument does exist, and it is deeply rooted within the Christian
tradition. Opponents of the recently failed Marriage Protection Amendment
in the Senate began to touch upon this argument when they asserted that
family law should be left to state legislatures and state courts, not
dictated by the U.S. Constitution. Unfortunately, opponents of the amendment
did not tap into the well of religious wisdom from which their argument
drew. The idea that matters which can be handled by a lower authority
should not be handled by a higher authority is not a new one: in Christianity,
this concept is called the principle of subsidiarity.
What is the principle of subsidiarity? According to the Office
of Social Justice for the Catholic Archdiocese of St. Paul and Minneapolis:
The principle of subsidiarity holds that the functions of government
should be performed at the lowest level possible, as long as they can
be performed adequately. When the needs in question cannot adequately
be met at the lower level, then it is not only necessary, but imperative
that higher levels of government intervene.
The principle of subsidiarity has been supported again and again in
the writings of the popes, both before and after the Second Vatican Council.
The principle of subsidiarity was also strongly supported by the United
States Conference of Catholic Bishops in their 1986 pastoral letter, "Economic
Justice for All" (#124). Lest anyone think that the principle of subsidiarity
is merely a Catholic doctrine, let us also recall the words of Jesus:
If another member of the church sins against you, go and point out the
fault when the two of you are alone. If the member listens to you, you
have regained that one. But if you are not listened to, take one or two
others along with you, so that every word may be confirmed by the evidence
of two or three witnesses. If the member refuses to listen to them, tell
it to the church; and if the offender refuses to listen even to the church,
let such a one be to you as a Gentile and a tax-collector (Matthew 18:15-17,
When teaching his disciples what they should do if a member of the Church
sins against them, Jesus does not tell his disciples to go to the Church,
the highest authority, first; rather, he tells his disciples to first
approach the offender individually, then to go back to him or her with
"one or two others," and then finally to bring him or her before the whole
Church. According to Jesus, the highest authority should only be appealed
to when lesser methods have failed - this is the principle of subsidiarity,
rooted in the Gospel of Jesus Christ.
Conservatives are familiar with the principle of subsidiarity. They
appeal to this principle, for instance, when they argue that the local
community and private charity should be providing for the needs of the
poor and vulnerable instead of the government and publicly funded programs.
They appeal to this principle, for example, when they argue that parents
and local communities should determine educational standards instead of
the federal or, sometimes, even the state government. Indeed, conservatives
appeal to the principle of subsidiarity in just about every debate over
social policy, from universal health care to gun control. Why, then, have
so many Republican conservatives refused to examine the implications that
the principle of subsidiarity has in the debate over amending the U.S.
Constitution to prohibit same-sex marriage?
Conservatives who genuinely care about the principle of subsidiarity
must ask themselves two questions. First, would amending the U.S. Constitution
to prohibit same-sex marriage be a function performed at the lowest possible
level of government? Second, can "the needs in question" be met at a lower
level of government?
In answering the first question, some conservatives would argue that
amending the U.S. Constitution to prohibit same-sex marriage would meet
the requirements of subsidiarity because such an amendment would have
to be passed by a supermajority of both congressional chambers and ratified
by ¾ (or 38) of the states. How, some might argue, can such a lengthy
process involving so many congressional representatives and so many state
legislatures be seen as anything other than inclusive and in harmony with
the principle of subsidiarity?
The problem with this argument is that it assumes a supermajority can
meet the requirements of subsidiarity. In fact, if a function of government
can be performed at a lower level, amending the U.S. Constitution would
still be a violation of the principle of subsidiarity unless all of the
states were to ratify the amendment. Why, some might ask, would unanimous
ratification of a constitutional amendment be necessary for it to meet
the requirements of subsidiarity? Let me give you an example. Let's say
that the Marriage Protection Amendment had passed both the House of Representatives
and the Senate, and then had been ratified by 47 states - leaving Massachusetts,
Vermont, and California as the only states not to ratify the amendment.
Such a constitutional amendment would still be a violation of the principle
of subsidiarity insofar as the state legislatures or state constitutional
amendments in all 47 states could have done what this amendment to the
U.S. Constitution would do, without impinging upon the right of the three
other states to make their own laws. We can see, then, that even a supermajority
does not guarantee compliance with the principle of subsidiarity when
a function can be accomplished at a lower level of government.
What about the second question? Can "the needs in question" even be
met at a lower level of government? Some conservatives would argue that
they cannot, citing court rulings in Vermont, Massachusetts, and other
states as examples of state governments' inability to "protect marriage"
from the destructive authority of so-called "activist judges." These conservatives
would argue that an amendment to the U.S. Constitution is necessary in
order to prevent "activist judges" at the state and federal levels from
ruling that bans on same-sex marriage are unconstitutional.
The problem with this argument is that it assumes that the states are
powerless in the face of judicial rulings. This is not the case. In 1999,
the Vermont Supreme Court ruled that the state of Vermont must either
extend marriage rights to gay and lesbian couples or create an equivalent
"domestic partnership" status with all of the same rights as married heterosexual
couples. The legislature complied with this ruling and created civil unions,
but the people of Vermont could just as easily have amended their state
constitution to prohibit same-sex marriage or civil unions in their state
if they had chosen to do so. Similarly, in 2003 the Massachusetts Supreme
Judicial Court ruled that the state of Massachusetts must extend marriage
rights to gay and lesbian couples. As in Vermont, the people of Massachusetts
have it within their power to amend their constitution to ban same-sex
marriage if they should choose to do so.
What about a recent ruling in Georgia, in which a judge ruled that an
amendment to the state constitution prohibiting same-sex marriage and
equivalent rights is unconstitutional? Doesn't this Georgia ruling prove
that even state constitutional amendments are inadequate? Absolutely not.
This constitutional amendment was declared unconstitutional because it
violated Georgia's "single-subject rule": constitutional amendments must
deal with only one subject. The amendment in question defined marriage
as a union between a man and a woman as well as prohibiting the extension
of equivalent rights to other partnerships - in other words, two subjects
in one amendment. The citizens of Georgia can still amend their constitution
to define marriage as a union between a man and a woman. They can even
amend their constitution to prohibit the extension of equivalent rights
to other partnerships. But they must do so in two separate amendments,
not in the same amendment. The important thing to note here is that it
is still within the state's power to prohibit same-sex marriage and equivalent
unions if they choose to do so, which means that this function can still
be accomplished at a lower level of government than the U.S. Constitution.
It is clear that amending the U.S. Constitution to prohibit same-sex
marriage would not be a function performed at the lowest possible level
of government and that "the needs in question" can be adequately met at
a lower level of government. Yes, state courts can rule that it is unconstitutional
to deny equal marriage rights to gay and lesbian couples - but as we have
seen again and again, states also have the power to pass constitutional
amendments that would prevent these judicial rulings. Under the Defense
of Marriage Act, it would be impossible for one state to force another
state to recognize its same-sex marriages or civil unions, and ten years
later the Defense of Marriage Act has not been declared unconstitutional
by the federal courts. Unless and until the federal courts overturn the
Defense of Marriage Act or declare that laws banning same-sex marriage
are violations of the U.S. Constitution, it would clearly be a violation
of the principle of subsidiarity to amend the U.S. Constitution to prohibit
Where does that leave us? It leaves us with a strong conservative argument
against amending anti-gay discrimination into the U.S. Constitution, an
argument that can work even with those who believe that same-sex marriage
is immoral and should be illegal. It leaves us with an argument that appeals
to the same values appealed to again and again by conservatives in debates
over social policy. It leaves us with an argument that is soundly based
upon Christian social teaching and the words of Jesus Christ, an argument
that can truly hold its own against the argument for discrimination proposed
by so many on the Christian Right.
Nelson is a 22-year-old political science major at Ohio University
Eastern. Nate is also a member of St. Anthony of Padua Catholic Church,
and maintains a personal weblog devoted to religion, politics, and culture
- The Gadfly of Thought.
Copyright © by the author
All Rights Reserved
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