State Rights vs Civil Human Rights

Former Vice President Dick  Cheney stated, perhaps for the first time, his personal belief that people ought to form whatever unions they desire.  “Freedom means freedom for all” he said.   Then he couched the quest for equal marriage rights not as a human rights issue but as a State sovereignty issue.   

Do states have the right to define what constitutes civil human rights?  And is it just to then have some states deny what other states declare as fundamental? 

This is where this country has historically gotten itself into turmoil in the past.   Slavery was considered a State sovereignty issue and it led us to civil war.  And marriage has also traditionally been a State sovereignty issue and has also been settled on a federal level.  Not as violently as civil war but on a federal level nonetheless.

On June 12, 1967, Loving V. Virginia, the Supreme Court ruled that banning interracial marriages was unconstitutional.  Mr. Loving and his bride went to the District of Columbia to be married and returned to Virginia to live. At the time of the court’s decision there were 16 states that banned and punished interracial marriages within their state.  Virginia in  its case as to the consitutionality of their denying Mr. and Mrs. Loving their marriage “reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.” 

The U.S. Supreme Court in deciding Loving V Virginia did not deny the state’s right to regulate marriage.  It did however state the following: 

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

I would argue the same holds true for same gendered couples.  The freedom to marry, or not marry a person of the same gender resides with the individual.  There are no sound reasons beyond religious doctrines (which in a pluralistic society cannot be made into the rule of law over another who does not accept nor abide with those doctrines)  to deny marriage between same gendered individuals.

State rights of sovereignty do not in my opinion trump civil human rights.  It is instead the other way around.



  1. PS Worth noting Cheney sound to the left of Obama on this…he used the word Marriage, not Civil Union.

    Yes, Obama with the exception of his latest appointment of Kevin Jennings, founder of GLSEN; has become to be seen as a bit of a disappointment to the gay community. Not lifting the travel restrictions on HIV+ foreigners; Not removing the don’t ask don’t tell policy from the military; and not able to find it within himself to use the word marriage in regards to same gendered couples. Cheney is definitely to the left of Obama in at least one issue affecting the gay community.

  2. Don’t kick an ally when you find one. States (and in the case of Illinois, Counties) have set the rules on marriage and it will stay that way. That’s for the best and the best strategy is to quit depending on judges and start persuading your neighbor. A guy like Cheney can help.

    Also, note the problem with Universal Rights is they get to be awfully arbitrary…

    Note Article 16 of the Universal Declaration of Human Rights,

    Article 16.
    (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
    (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
    (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

    Paragraph 3 can be used by opponents of SSM very easily….

    …best to let the people decide this one.. State by State, and in Illinois County by County…. you should be welcoming the VP on our side here.

    I didn’t think I was kicking him, just not convinced that state sovereignty is the best route here when history has human rights being decided on the federal level, everytime.

  3. …you kicked him.

    It took a horritifc civil war to get the 13th, 14th, and 15th amendments to the Constitution. No Judge… brutal war without mercy…. Marriage is a human construction malleable to human whims and definitions (I remember arguing it was slavery a few decades ago with my copy of Emma Goldman’s bio in hand). What the Government License is not a right. It’s legislated and the war will tone done greatly if people would convince their neigbors vote, rather than the Judges edict. Judges no better judges of moral values than the next citizens…

    Bill, did you even read what I wrote? This response indicates that you brought in a whole load of stuff not in my post. I wrote that historically state sovereignty in regards to human rights ends either brutally with a civil war or with the federal government intervening as in the case of Loving v Virginia. I think it would be wonderful if citizens would vote in their legislation like they did in Connecticut–there was no judge mandate in their process to having equal marriage rights [This I discovered is not accurate. The process to receive civil unions went through the legislative process but the right to marry was through the courts.,0,2652612.story%5D. However, Justice is ultimately not served when some states validate human rights and other states invalidate those same rights. Slavery, the Civil Rights movement of the 50’s and 60’s, interracial marriage, all had their moments where the federal government needed to intervene. That is not a kick at Cheney, that is just historical observation. There is every indication that history is repeating itself with an insistance that state sovereignty rights trumping human rights.

  4. Yes… you’re equating Cheney’s leaving marriage to the determination of a State’s votes, to racial discrimination of the 50s and earlier. You call that an historical observation. I call it an historical observation powered by a kick in the teeth.

    I lived in a community with the largest per ca pita GLBT membership per ca pita in Illinois. My friends neighbor was a Gay couple with two adopted sons, one white, one black. The obstacles faced the black son were far more fearsome than those faced by the white one. It was evidenced by talking to the parents about a parents fears. The white kid didn’t fear recruitment by neighboring street gangs. He didn’t fear getting stopped by the cops at night.

    So I just don’t by the frame that the fight for civil rights for African Americans, and for GLBT are equivalent.

    Marriage will be different in 50 years. It will be something we don’t recognize.

    The same can’t be said for “race”.

    So yes, I just don’t by your frame here. I think it’s a kick in the teeth directed to someone who wants to be an ally on this issue.

    I was not stating the two were equivalent, those are your words and what you brought to reading this post. I was referring to the process that historically occurred when left up to the states to decide the fate of human rights issues. That was as far as my similiarity was going.

    Shall I also throw in the women’s civil rights and suffrage movement into the mix. Would that make it clearer? That too ended up with a federal intervention because states were not budging on it. It was a constitutional ammendment so it was a vote. But the more current ERA ammendment [sic] has never passed into the constitution. And it may not until there is a federal intervention.

    What is really at the heart of this debate between us Bill, as I read it, is the fundamental philosophical difference of the role of government. Cheney’s philosophical drive is republican and my mine, democrat. Cheney firmly believes that small government must when at all possible solve the issues. However, when it comes to something as fundamental as civil rights that affects citizens beyond the domain of one state, then a national resolution (civil war, federal judges, ammendments) seems to be the method we have used historically to be the ultimate decider. We will see how this all plays out but if I had to bet money on it, equal marriage rights are going to be decided on the federal level one way or another.

  5. What is really at the heart of this debate between us Bill, as I read it, is the fundamental philosophical difference of the role of government.

    That’s the heart of American politics. What level and branch of Government is best left to decide, and ultimately if it isn’t best to let individuals decide on their own.

    Government Licensed marriage a late 19th century fashion, and sadly many benefits decisions have attached to it.

    I think it would be best if government got out the marriage licensing business today, and redefined any benefits around individuals and not families defined by licensed Marriages.

    Anything that’s a fundamental human right should never be licensed. I don’t think Marriage is a right like that. It’s not something inalienable to use. It’s not something that “completes us”, or allows us to be “full people” somehow as is the current frame for money. It’s a human habit and it will change with the times. I think it’s will on it’s way to disappearing (as money of us advocated not so many decades ago).

    Figuring out what to replace it with is the challange.

  6. too early… for some reason “many” came out as “money”… but the sense of it is there.

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