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Gay marriage and the 14th Amendment

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It has certainly been a good week for the supporters of gay marriage. Two states, Pennsylvania and Oregon, have had their same sex marriage bans thrown out. This after several other states, including Michigan, have seen theirs trashed. All this has been done under the Equal Protection Clause of the 14th Amendment. Yet whether you agree with gay marriage or not, this is little more than part of a trend which is slowly but surely choking the several states of their rights and sovereignty.

This is not a good thing, and it must be stressed that the reason it is bad ultimately has little to do with homosexual marriage. Since 1925, in a case known as Lochner v. New York, the US Supreme Court has been steadily 'incorporating' Bill of Rights protections against the states. In the nearly 90 years which have passed, many parts of those first ten amendments have been ruled to bind the states. To be honest, and setting certain of the framers' scrutinies aside, this can be good, as where Miranda rights are involved. It can also be very bad; a major defense of abortion was based on the 14th Amendment's Due Process clause. But the real point is that, over time, the Amendment has been used to drastically increase federal power over the states which gave birth to it.

Would all 50 states have abortion if it weren't for Roe v. Wade? Reasonably speaking, no. That is but one issue, of course, and it would bore to list them all here. The bottom line is: how many areas have we seen Washington's reach grow further and more strongly since the doctrine of Incorporation has been developed, and in more than mere Supreme Court rulings? That is not all due to the 14th Amendment, of course. The 16th and 17th have done their share of damage, and government overreach which started with Hoover's response to the Great Depression and magnified by FDR, Truman, LBJ and so forth, certainly share fault. Yet much of it seems to have started with that middle Civil War amendment and the liberal willingness to go to court rather than seek political solutions to the issues of the day.

If we are to remain a viable federal system, then many areas which are now in Washington's grip ought to be under state control. These areas are not limited to questions of marriage and abortion, and it is a shame that many conservatives and libertarians who normally loath Constitutional and federal excess support it when it is used to support their personal views. It is little more than a recipe for tyranny in the long run.

It will be interesting to see what happens with same sex marriage when the leviathan its supporters have come to love becomes fully despotic.

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