Yep. That’s right. The judge who ruled that the Defense of Marriage Act is unconstitutional is clearly an uneducated, red-neck, racist intent on bringing back segration.
How did I come to that conclusion? Just read what he wrote in his opinion:
“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment. For that reason, the statute is invalid,” Judge Tauro wrote in a ruling in a lawsuit filed by Attorney General Martha Coakley. Yes, that Martha Coakley.
The judge is using a States’ Right argument as the basis for ruling that DOMA is unconstitutional and needs to go. States’ Rights. I know. Everyone knows that when people talk about States Rights that is code for hatin’ the black folk and wanting the Confederacy to rise again. That’s what I’m informed of when I note that as a Conservative, I’m a strong supporter of States Rights (aka Federalism or New Federalism or mockingly called “Tenthers”).
I’ve written the above portion of the post satirically as I’m both very pleased with the ruling yet frustrated by a lack of understanding or appreciation of what being an advocate for States’ Rights means. Aside: To read a much better version of satire, or Satyr – mocking criticism of societal conventions – you may want to give this a once over.
Being a Hellenic Pagan, with it’s history of autonomous poleis with varying laws and customs, has only slightly reinforced a favorable view of that philosophy. Not that I’m blind to all the problems such a system of closely allied states can have. After all, we tried it from 1777 to 1789 and had to make some well-reasoned adjustments to how we ran our government and what the roles of local, state, and federal authority would be. Now, if only we could institute formal ostracism for a set period of time for public figues who piss us off or annoy us like they had in Athens. Wouldn’t that be nice?
Back to States Rights and if it is “code” or “dog-whistle” politics for racist policies.
Yes, some of the people advocating for States Rights really are pushing for a return to segregation. Not many, but there are people who are that bigoted and backward. But States’ Rights no more equals racism than Asatru equals white supremacy. Or Wicca equals evil witches.
The political concept of States Rights and Federalism existed long before the “Southern Strategy” of courting white southern voters longing for a return to segregation by Republicans to gain power in the South after the Civil War ever came into being. (The interesting thing about the Southern Strategy is that it was an attempt by the GOP to break the hold Democrats had over the South since the end of the Civil War. A hold that was based on state sanctioned and enforced racism by the Democrats. Which was, in turn, a reaction to the racial equity reforms enacted by Radical Republicans during Reconstruction.) I could get into a detailed explaination of the meaning and history of Federalism, but can we just say that Federalism is a system of government in which power is divided between Federal, State, and Local governments? That those of us who are Federalists think that, at this time, the Federal government has unconstitutionally usurped too much power by using the 10th admendment and the “Necessary and Proper” clause.
The 10th amendment is possibly the most misused and misinterpreted amendment in the entire constitution. It has been stood on its head to allow the Federal government to sieze authority that should belong to either the States or the People. The 10th amendment was created to reinforce the idea that all powers not specifically granted to the Federal government nor prohibited to the States by the Constitution of the United States are reserved to the States or the people.
The 10th amendment also contains a little something called the “commerce clause” and it is that which the Federal government used for about 60 years (from 1938 to 1995) as a club to forcibly steal power away from the States and from the People while the Supreme Court laid down like a doormat. In all of that time, SCOTUS did not overturn a single federal law or regulation enacted using the commerce clause as a basis to force States into compliance and uniformity. The Federal government argued that if it crosses state lines, they have the authority to regulate it or have legislative power over it. Problem being theysay that everything crosses state lines, therefore States don’t really have authority over much of anything. This greatly weakened the ideal of limited and enumerated powers for the Federal government.
The tide has been turning, a bit, in the courts regarding the interpretation of the 10th amendment. No longer are courts interpreting the amendment as carte blanche justification for federal law enacted with the intent to force states to comply with federal wishes and to conform.
Which gets us back to Judge Tauro’s ruling in saying DOMA is unconstitutional. He used the 10th amendment (and 14th) in his ruling, but instead of using it (as it had been) to strengthen DOMA by saying that the Federal government can force States to comply with DOMA, he used it to argue that the 10th amendment grants each States the authority to decide for itself to DOMA or not to DOMA. That the federal government had no right to force states into outlawing gay marriage if thier citizens wished otherwise.
Now, if we can just get the courts to bring the Comity Clause into play, that would make me even happier. A marriage is a contract that should be treated like any other contract or public record, which means “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” A gay marriage in Iowa should be legal and recognized in all 50 states.
I have a few odds and ends notes to close with:
1. Don’t get out the champagne just yet. This ruling is not binding on other states.
“This is a decision from a trial judge in the federal court. Unless and until the First Circuit decides to weigh in — and/or the Supreme Court of the United States, it doesn’t have any binding precedent on other states,” David Frank, Senior News Reporter for Massachusetts Lawyers Weekly.
2. And yet…I am concerned that this ruling could spark a US constitutional amendment similar to how court rulings at the state level spurred 30 states to amend their constitution to limit marriage to one man and one woman.
3. The DOJ may appeal this ruling but that does not mean they agree with DOMA. They may appeal it in an attempt to get it before SCOTUS to have THEM strike it down.
4. And finally, a note to my fellow Conservatives. For decades we have spoken passionately about States’ Rights, Federalism, the 10th amendment, and checking the ever expanding power of the Federal goverment. If that is a true, core belief of ours than we should be thrilled by this ruling no matter how we feel (for or against) about gay marriage. If you aren’t, then yeah, you are the reason why Liberals can tar us with the States’ Rights = Racism meme. I would appreciate it if you would stop posing as a principled Conservative when you are clearly nothing of the sort. Conservatives who oppose the States’ Rights arguement in this case because they support the statute in question are every bit as hypocritical as Liberals who see States’ Rights arguements as code for racism to then applaud the ruling because they oppose DOMA. But this wouldn’t be the first time Conservatives were hypocrites when it came to championing States’ Rights.
I noticed that years ago. Many neo-cons only bother to champion states rights where it serves them, not for the sake of states rights in and of itself. For instance, states are powerless to enforce their own usury laws on out of state credit cards. Where are the states rights champions on that issue? A lot of neo-cons are more than happy to disregard states rights when it comes to proposal to allow insurance companies to ignore state laws and sell their wares in states that their unfair practices are illegal. I consider myself a liberal in many ways, but I am for States Rights because it’s a major part of the constitution and a good check on the powers of the other branches but not to further an agenda.
All “States Rights” based legal rulings are not racist. Only the “States Rights” rulings that uphold and perpetuate racism are racist. That’s how you can tell.
Excellent post! This post only affirms my opinion that American politics is less a case of conservative VS liberal, but reasoned people VS irrational people.
I’m not interested in the narrow states rights thing. Somebody needs to explain to me how you can be a (modern) pagan and be a political CONSERVATIVE as we understand Conservative politics in the U.S. today! I mean, how do you talk to the true-believing right-wing christian nut-jobs? Or do you talk to them at all? Sounds to me like being a Log Cabin (homosexual) Republican–an exercise in futility and, I dunno, worse…
Pagans are a diverse group of people. We don’t have an orthodoxy, not in our religion or in our lives.
I suggest you read some of back entries and perhaps that can help you understand how someone can be a Pagan and be politically Conservative, Liberal, Nothing, or anything in between. Also – that perhaps our understanding of opposing political camps is overly simplistic, or flawed – at least in where their motives and intents are concerned. That people may belong to a group, but they are still individuals with views that will be conform and contrast with what people assume the groupthink is. Dispelling that (along with just engaging in or at least listening to different points of view) is one of the goals of this blog project.
How do I talk to nut-jobs of any flavor? Well…I generally don’t. But I do talk to intelligent, caring, passionate, and open-minded folks of all types of religions, political philosophies, etc. One thing I have found is that people are people – some good, some not so good – no matter where you go.
That does beg the question, though – the sorting out of those who are fiscally conservative, socially conservative, or both. One wonders how it would be possible to reconcile being a social conservative (as is currently understood in the US) with being pagan (since after all, a great majority of their agenda comes from the more rabid and fundamentalist versions of Protestantism).
I do know some (very) socially conservative Pagans and it would be interesting to hear from them. Most – but not all – of them are some type of Recon Pagan and so (depending on the ancient religion) it makes sense that they would be socially conservative (although I hate the term “socially conservative” as I think it is incorrect and very misleading). In fact it would be stranger for them to be politically liberal.
For that matter…many Pagans seem to be a mix. They may believe in keeping abortion legal, but support gun rights. Once you get down to specific issues, I think Pagans are much less “uniform” than people may suspect.
Most everyone is a mix of some sort – I’ve yet to see anyone (aside from politicians) in real life claim to be a social conservative, which is part of why I am asking. What kind of things would you consider them (or yourself) to be socially conservative on? I’m honestly curious, not trying to be snarky or anything.
Eran – you’ve never been snarky.
Hmmm…I guess I dislike the term “social conservative” because I think it muddies the water. In a political context, to be a Conservative means you ascribe to the following ideal: smaller government. Which doesn’t mean what many think it means – but is talking about shifting more direct control to citizens by having authority rest as close to them as possible or practical. This isn’t about size, it’s about scope and power. Lower taxes and other issues get thrown in there, but it all comes down to smaller government.
So looking at abortion – a Conservative could say it is a medical practice and there should be no regulation of it (power resting solely with the citizen), it is a medical practice and so may be regulated at the State level (power resting at a lower level and allowing local citizens an easier way to exercise their power), it is a case of conflicting citizen rights between that of an adult and a baby and should be regulated at the State level, or it is a case of equal and conflicting rights between two citizens (the adult and the baby) and should be heavily regulated at the State level. (BTW – heavily regulated may mean it is effectively banned, but may not mean that)
ALL of those are Conservative positions. What would NOT be a Conservative position would be for regulation of abortion (or either allowing or banning) at the Federal level. That places power too far away from the citizens – especially over an issue that almost solely affects individual citizens. (As opposed to a foreign invader which affects the country and our society at large in a direct way)
In abortion, what would commonly be called a “socially conservative” position would be either to heavily regulate abortion at the State or Federal level – and only ONE of those positions are politically Conservative in nature.
You know…I should probably do a longer post about this – what is politically Conservative and what really isn’t. So I won’t go into that area much more except to say when you see someone talk about regulating at a federal level, the odds rise that the person isn’t speaking from a politically conservative viewpoint on that issue.
But back to areas where Pagans can be what most call “socially conservative” – I wish we had a Pagan who has those views writing on here…
Abortion is certainly one. I’ve seen Wiccans cite the Rede as a reason why they do not support elective abortions. My position is that abortion is killing a baby, but I also believe it should be legal in the state I live in.
Death penalty – there isn’t a shortage of Pagans who support the death penalty. I support it, especially with the advances in DNA evidence, but it’s not a major issue I care about.
Gay marriage – there are Pagans who don’t support gay marriage (state and/or national) for moral/ethical reasons. I don’t support it, for an entirely different reason. I don’t support states regulating marriage for anyone (which is a religious rite the same as a baptism in place of a birth certificate) but I do think states can regulate contracts. So if two or three or more adults want to enter into a domestic partnership contract and they adhere to contractual law, the government (at any level) should butt the hell out. Have the judge or county clerk sign off on it and be done.
Those are kind of the Big Three of social issues. Perhaps a Pagan who holds those kinds of positions will become a writer here and we can all learn more about their thoughts on social issues and how that mixes (or doesn’t) with their religion.
It’s a nice theory that federal power is too distant to closely regulate the lives of free people. But that theory allowed the perpetuation of quasi-slavery of African Americans for nearly a hundred years after the Civil War. Those who grew up during the civil rights era saw this first hand and are unlikely to forget it when conservative youngsters start spinning state versus federal theories. (Your post that started this off, riffs on an exaggerated version of that sentiment for rhetorical effect.)
But that sentiment ignores the many governments that also (and still) engage in systemic discrimination and virtual or real slavery of their people and have a very strong Central government.
No matter what your form of government, there is always the very real possibility of oppression by that government.
With “smaller government” it is harder for people within the USA to be uniformly oppressed and it is easier for citizens to both correct injustices and (if that fails) to move to a state where that particular injustice is less/doesn’t exist/easier to change. With all power residing in the Federal government, it is extremely hard to enact change and it is harder to escape laws that you find unjust or immoral.
As for youngsters…THANK YOU! I celebrate my 40th birthday in August and I’m pretty excited about it, but it never hurts to be called a youngster.
Your assumption that small government makes it harder to oppress a people systematically, or that one always has the choice to move to a less oppressive environment, simply shows that you not only didn’t live through the Jim Crow years but haven’t absorbed their import. Jim Crow is an historical fact that you have dodged in creating your political philosophy. My political philosophy may be fusty but it doesn’t dodge facts.
Never once did I use the word “always.”
You are correct that I do believe placing power closer to the citizens’ hands in smaller units does make it harder to oppress an entire country over the long term. That doesn’t make it impossible, or even improbable – just more difficult. It is easier for a strong, centralized government to inflict and enforce oppression over all of its citizens for long periods of time.
You cite Jim Crow. Yes, the very nature of differing State laws allowed Jim Crow to exist in the South. But…it also prevented it (for the most part) to not exist in the North. Those laws were struck down, at the Federal level – which was the appropriate authority level for that to happen. So this example is in line with what I’m talking about when I speak about States Rights and Smaller Government as Conservative political concepts.
Above – I wrote this “In a political context, to be a Conservative means you ascribe to the following ideal: smaller government. Which doesn’t mean what many think it means – but is talking about shifting more direct control to citizens by having authority rest as close to them as possible or practical.
The “possible or practical” portion of the sentence that I believe people either omit or do not pay proper attention to when they hear someone else talk about Smaller Government. It’s a very important part. The Federal government certainly has its role to play in our form of government and there are times when the Federal government has to step in and has done so. But the Federal government needs to have its power restrained and held in check. And right now, Conservatives believe, it is too powerful and has encroached too heavily into the power and authority of both the States and the citizens.
I also want to say – you are correct that I wasn’t an adult during Jim Crow and I don’t know what that was like – and I would LOVE to hear your recollections of that time.