Let us talk about a states’ rights approach to the baseline sexual issues — by which I mean issues like abortion and same-sex marriage. This issue has been brought to the fore by Ron Paul’s constitutionalist approach to tackling such problems. Paul believes — and he is right — that the Constitution permits states to outlaw homosexual marriage, abortion, and so on. The question is whether the Constitution also permits legal abortions and homosexual marriage, which is dubious. But, even if it did, the next question is whether the creation order and laws of social logic would permit such a thing.
I want to begin by distinguishing between a states’s rights strategy on these things and a states rights settlement on them. I am entirely in favor of the former, and unalterably opposed to the latter.
A states’ rights strategy wants to repeal Roe v. Wade, for example, allowing any state to make it illegal again instanter. Abortion is legal everywhere now, and any development that allows individual states to put up a fire wall is entirely a good thing. This would be a strategy. A states’ right settlement forgets that the reason you need fire walls . . . is for when your house is on fire. You don’t erect firewalls in order that it can be all right for one part of the house to be on fire, while making off limits for your part of the house to be on fire. Fire walls can be part of your strategy for fighting fires in the whole house. They do not make fire walls okay anywhere.
So this is how the issue teases out in the current political debates. An advocate of a settlement would say something like, “The Constitution allows any state to make homosexual marriage illegal if it so chooses . . .” Usually unstated is the flip side of this, which is the assumption that a state can authorize homo marriage as well. A state can outlaw abortion and a state can decide to not do so. But an advocate of a strategy approach would say something like, “The Constitution allows any state to make homosexual marriage illegal, which of course any state concerned with moral order and public decency will do as soon as possible, and with my full support. All other states have a moral obligation to follow suit.” The former contents itself with legal process and arrangements, and the latter acknowledges the process, but directs it as a tool toward a particular moral end.
If Ron Paul means the former, I differ with him. If he means the latter, I support it. Some might say that this “strategy” approach would not work, but after forty years of ineffectual national efforts to outlaw abortion we should know something by now about “not working.”
This is why a “settlement” approach to these issues is a patchwork affair, and cannot represent any kind of permanent truce. Laws like the DOMA approach are simply the temporary bungee cords and baling wire that we are using to keep this fifteen foot high load on the back of this pick-up. If we take another corner like that, it’s all gone.
The Constitution guarantees to each state a “republican” form of government (IV.4). This is a recognition that two cannot walk together unless they are agreed. But we are rapidly approaching the point when our Consitution will be unable to guarantee to the individual states the same form of civilization. A great nation can enjoy the diversity revealed a New York deli sandwich and a plate of New Orleans jumbalaya. Both such different culinary cultures can exist in two republican forms of government, with a higher shared commonality. But a nation which has one state prohibiting the dismemberment of little children in utero and another celebrating the constitutional prerogatives being exercised in such a choice is a nation that is disintegrating, if it has not already disintegrated. This is what it looks like when the center gives way.
Marriage — as God defines it — is foundational. Respect for life is foundational. And foundations don’t do their job when they are only under part of the house. The “full faith and credit” portion of the Constitution says this: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State”(IV.1).
If we get to the point where the drivers’ licence of one state must be respected by all the others, but who or what you can marry varies depending on how much gas you have in your car, then we are sunk. Stick a fork in it, it’s done.
The DOMA approach is a death blow aimed at this full faith and credit clause. That is why a DOMA settlement is impossible, while a DOMA strategy is quite sensible. In other words, the fire wall strategy is fine for those who recognize that the United States must eventually have it all one way, or all the other. We should only be willing to fight this way if we are incrementalists the same way our adversaries are. Does anybody seriously think they are going to stop when just over half of the states have regularized homosexual marriage? In the same way, and for the same reasons, I am not willing to stop the fight until New York and California are pro-life down the line.