Making a Federal Case of It

Dahlia Lithwick and Sonja West strongly argue that the right to marry is a fundamental constitutional right, one that should be recognized and protected nationwide rather than by individual states.  They show that courts have long recognized marriage as a fundamental right.  They also show why leaving the decision to recognize a legal marriage should not be left to the states. 

What’s messy is what we have now—an oddball collection of marriage laws, civil unions, and same-sex bans that stop and start at state lines.  This is simply unworkable in a country where we all have the right to travel (another one of those “fundamental rights”) and there’s no way to ask people to check their marriages at the border.  Add to the mix that nobody has any idea whether the Defense of Marriage Act can overrule the Full Faith and Credit Clause by telling states that don’t recognize same-sex marriages that they can ignore unions from states that do. We have interstate child custody disputes that are Solomonic in scope. And our schizophrenic tax codes treat the same couple as married on one form and not married on the next. Social security, Medicaid, health care directives, estate planning, and immigration all hinge on marital status, which in turn hinges on the whim of the voters. The courts are just now wading into that morass and we won’t lie, it’s ugly out there. 

Lithwick and West know the law along with the practical mechanics, so to speak, of enforcing civil rights in a federal system.  They make a strong case for a national standard.  All that makes for a bold conclusion, using language that reaches deeply into America's constitutional and federal heritage.

It’s time to fight this battle where it belongs, which is on the federal stage.  It’s time to embrace the language of constitutional justice. It’s time to say what is at stake here—true equality, full citizenship for everyone, basic human dignity and, yes, a fundamental right.  The state-by-state rhetoric gives too much credence to the argument that the states have an option to discriminate, sometimes, so long as enough of their citizens cast a vote.  They don’t.  The Constitution forbids it.

When it comes to fundamental rights, the individual states cannot be trusted.  Nor can majorities.  As Lithwick and West note, it’s ugly out there.