Gay Marriage, State’s Rights and Social Conservative Evasion

by | Mar 7, 2015

It's not 'states’ rights' they’re in favor of, so much as gay marriage that they’re against.


This spring, the Supreme Court will be ruling on the issue of gay marriage. One of the primary issues is whether states — as Alabama has done — may outlaw the legal legitimacy of gay marriage, at least at the state level. (Efforts to do so at the federal level, via Constitutional amendment, have so far failed).

It’s interesting to watch people rationalize, evade or otherwise take intellectual cover when they’re wrong. You find it in daily life with family, friends or business associates; and you find it with Supreme Court justices, as well.

Consider the following, from The New York Times [2-9-15] and [2-10-15]:

By effectively upholding a lower court ruling against Alabama’s homosexual marriage ban, the Supreme Court has likely tipped its hand about what the outcome will be when it rules on the issue this spring, The New York Times said Monday.

That clearly troubled Justice Clarence Thomas, who said the Court had all but issued its decision by failing to intervene in the Alabama case.

Thomas filed a blistering dissent, also signed by Justice Antonin Scalia, after his fellow justices rejected Alabama’s plea to say no to gay marriage in the state until the Supreme Court issues its nationwide ruling in a few months.

Thomas blasted the court majority for looking “the other way as yet another federal district judge casts aside state laws,” instead of continuing the longstanding practice of leaving those laws in place until the court rules on an important constitutional issue.

“This acquiescence may well be seen as a signal of the court’s intended resolution of that question,” Thomas wrote in an opinion that was joined by Justice Antonin Scalia. “This is not the proper way” for the court to carry out its role under the Constitution, he wrote, “and, it is indecorous for this court to pretend that it is.”

When liberal progressives are wrong, they usually hide behind the label of “compassion,” and accuse anyone who disagrees with them on any matter — tax increases, socialization of medicine, government regulation — as “hateful.”

When social conservatives such as Scalia and Thomas are wrong, they hide behind the label of “states’ rights.”

According to this point of view, the state has the right to deny individual rights for same-sex couples to associate and contract (in a personal context) as they see fit. Would these socially conservative judges disagree if the federal government attempted to do the same thing? Very likely not, because it’s not “states’ rights” they’re in favor of, so much as gay marriage that they’re against.

Despite these evasive contradictions, and since the attempts to impose a federal Constitutional amendment banning gay marriage have failed, it’s now convenient for social conservatives to take cover under “states’ rights.” The big bad federal government has no right to prevent Alabama, nor any other state, from imposing such a ban, according to this perspective. Of course, if the federal government itself were imposing the ban, then the conclusion would almost certainly be different.

The interesting thing about conservatives, especially somewhat libertarian conservatives such as Clarence Thomas, is that they claim to be against big, overreaching government. Yet if the states have rights that override individual rights, then on what basis do you prevent the state — or the federal government — from violating individual rights in other ways? We don’t use “state laws” as a justification for imposing slavery, or restraining speech, or completely outlawing gun ownership. So why are “state laws” a justification when it comes to activities that socially conservative judges find personally distasteful or offensive?

This is one of the key lethal contradictions of “conservatism” as we know it.

By the way, there is no such thing as “states’ rights,” any more than there is such a thing as the many phony rights that progressives make up in other contexts (e.g., the right to equal wealth, right to a job, right to health insurance, right to free college, etc.) There is only one kind of right: The right of the individual to be left free from force, including fraud.

A government has no right to force anybody to do anything, aside from refrain from the use of force or commit fraud (a form of force). Of course, both the federal and state governments have gone way, way beyond that originating premise of the U.S. Constitution. Social liberals who complain that conservative justices won’t uphold the individual rights of gay persons to marry have only themselves to blame for the many contexts in which they have thwarted individual rights themselves. The fact remains that if you want to get government (state or federal) out of the bedroom and off the genitalia of consenting adults, you have to get the government out of our doctor’s offices, bank accounts, and all the other areas where government routinely controls, manipulates, subsidizes and imposes.

If you think that gay marriage is not an individual right, then ask yourself the question: By what right does the federal or state government forbid people from establishing legally voluntary arrangements among consenting adults? Upholding the right to private association is not the same as endorsement. It feels like an endorsement to people who dislike gay marriage or homosexuality, but feelings alone do not make it so.

The same social conservatives who wish to uphold the “right” of Alabama to prevent free association in this context are the same ones who feel entitled (correctly, in my view) to uphold the right of doctors and patients to associate freely outside the context of government, or people to keep their earnings (rather than pay income and capital gains taxes, for instance).

Yet you can’t have it both ways. You cannot — based on emotion or personal convenience — uphold liberty and individual rights in some cases, and disregard them in others, and then expect people to respect your opinion.

The opinion was most remarkable for the sharply worded criticism of fellow justices, with Thomas calling the decision “yet another example of this court’s increasingly cavalier attitude towards the states,” adding that the high court has not “shown the people of Alabama the respect they deserve.”

So majority rules, Justice Thomas? Do the majority in Alabama (who presumably are against gay marriage), by virtue of being a majority, allow us to ignore the issue of individual rights? And if you’re prepared to uphold individual rights in other matters, as a limited government conservative, then why aren’t you prepared to uphold them — majority or not — when it comes to something that you find personally distasteful or wrong?

In matters of principle, consistency separates the men from the boys. In on both the “left” and the “right” these days, the most powerful men (and women) in the land are all boys.


Dr. Michael Hurd is a psychotherapist, columnist and author of "Bad Therapy, Good Therapy (And How to Tell the Difference)" and "Grow Up America!" Visit his website at:

The views expressed above represent those of the author and do not necessarily represent the views of the editors and publishers of Capitalism Magazine. Capitalism Magazine sometimes publishes articles we disagree with because we think the article provides information, or a contrasting point of view, that may be of value to our readers.

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