State's Rights
ebrown_p wrote:Debra,
First a Compliment. You argue passionately for both traditionally conservative and traditionally liberal issues. I must say that I respect that.
I am strongly in favor of the rights of homosexuals to marry.
However, I have questions about whether the Federal courts should be able to overturn a State's Constitution. Many of our laws are based on a subjective view of morality.
How would you draw the balance between State's rights (which is a real Constitutional prinicle, not just a conservative slogan as it is sometimes portrayed) and the need for this civil right?
I am truly agnostic on this issue right now. Please let me know how you would make this balance.
ebrown:
All fifty states have legislative bodies that make laws that apply to persons (including businesses and corporations) found within their jurisdicitions. The states are free to craft their own laws as they see fit, but within certain limitations.
There exists a heirarchy of laws.
Article VI
Article VI, of the United States Constitution provides the following:
Quote:This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
The Constitution is the supreme law of the land. It is first and foremost in the heirarchy.
Next in the heirarchy are treaties and federal laws made in pursuance of the Constitution. Congress's powers are limited to the enumerated powers that the people granted to Congress via the Constitution. If Congress passes a law that exceeds its limited powers or violates the Constitution, the Constitution prevails and the ordinary legislation is void.
The judges in every state are bound by the supreme law of the land. The United States Constitution reigns supreme. If anything in a state constitution or a state law is contrary to the United States Constitution, the United States Constitution prevails.
All state legislators, executives, and judges are required to swear an oath to support the U.S. Constitution.
In our heirarchy, the states are not allowed to make any laws or amend their state constitutions in any manner that conflicts with the U.S. Constitution. If they do so, the U.S. Constitution prevails and the state law or state constitutional provision that conflicts is void.
The states' rights issue was overwhelmingly the cause of the Civil War. The interests of the northern industrialized states and the interests of the southern slave states were in conflict ultimately causing such a rift that the southern states seceded from the Union. If the civil war taught us anything, it should have taught us that our federal Constitution and federal laws are supreme--and that states cannot undermine that irrefutable fact.
The Fourteenth Amendment (1868) was a post-civil war amendment. With respect to individual rights, the Fourteenth Amendment establishes the FLOOR. States may give the persons found within their jurisdictions MORE protection (security) against tyranny and oppression in their state laws and state constitutions than that provided by the Fourteenth Amendment, but they cannot provide LESS protection (security).
In the 1950's, segregation was an important states' rights issue. George Wallace won a landslide victory in his bid for the governorship of the State of Alabama. He won based on his pro-segregation, pro-states' rights platform.
Looking back on those times, the people believed it was wrong to allow the perceived "inferior" black people to commingle in society with the perceived "superior" white people. Sadly, the Supreme Court once ruled that the "separate, but [alleged] equal" treatment of the races did not violate the Fourteenth Amendment. Having become slightly more enlightened since the Plessy v. Ferguson ruling of 1896, the Supreme Court eventually interpreted the Fourteenth Amendment to extend equal rights under the law to blacks. Brown v. Board of Education (1954).
Brown v. Board of Education teaches us that a state does NOT have the right to treat people unequally via the power of the state unless the state has a compelling interest in doing so. Treating some people differently simply because others think they are morally inferior or because they possess traits that others despise can never justify unequal treatment under the Fourteenth Amendment. The issue of states' rights does not embrace the right of the majority in a state to discriminate, oppress, or tyrannize minority groups who are found within the jurisdiction of a state.
Unfortunately, this is a lesson that needs to be taught over and over again.
The Supreme Court recently provided the citizens of this country with another important lesson in Lawrence v. Texas. Because some people believe that the private, consensual sexual relations between persons of the same sex are WRONG, they enacted laws (used the power of the State) to criminalize that "wrongful" conduct. But, there are certain lines that our lawmakers cannot cross when legislating according to the moral views of the majority with respect to right and wrong.
The Supreme Court wrote:Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. . . .
We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. . . .
It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992). . . .
Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.
The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:
"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U. S., at 216 (footnotes and citations omitted).
Justice Stevens' analysis, in our view, should have been controlling in Bowers and should control here. . . .
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
The lesson learned from Lawrence v. Texas clearly informs us that there are certain lines that the states may NOT cross when legislating on matters of majoritarian opinions of right and wrong. The Court told us:
1. The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.
2. Individual decisions concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment.
The issue of states' rights does NOT embrace the right of the moral majority may use the power of the State to enforce their views on the whole society through the operation of state laws. This includes making laws that discriminate or oppress or amending state constitutions to be discriminatory or oppressive. See
Romer v. Evans (1996) (Pursuant to the Equal Protection Clause of the Fourteenth Amendment, the United States Supreme Court invalidated "Amendment 2" to the Colorado State Constitution, which precludes all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships.")
People like Brandon claim they do not see (or understand) how the Fourteenth Amendment can be applied to prevent the moral majority from passing laws based on their perceptions of right or wrong. That willful blindness comes from an inability or refusal to understand that our country was never organized on the basis of the principles of a pure democracy. Rather, we are a republic--an important distinction that many people fail to grasp.
[Our forefathers] knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. The issue of states' rights is not based on a license to oppress. Maybe fifty years from now, we can take off our blinders (are you paying attention, Brandon?) and look back on the current times, and finally see that our laws that discriminate against homosexuals are NOT necessary nor proper--but serve only to oppress in violation of the Fourteenth Amendment.
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