From Whence Cometh Gay Rights? Part 1

The whole “gay marriage” issue and homosexual agenda is troubling to those who believe that sex outside of heterosexual marriage is harmful and sinful. The pre-election debates and campaigning underway highlight the need for Conservatives to find the ground they should stand on and then unapologetically defend it. Where our country is today is the result of a long line of evolving law, which I’d like to review in a couple of posts, starting with this one.

When our nation was born, there was a clear understanding that the federal government was to be limited and the states and local governments would be free to act in a much more democratic—majority rules—way.  States could set rules for their own governance, and were not subject to, for instance, the Bill of Rights of the U.S. Constitution. The Tenth Amendment was ratified on December 15, 1791, to make it clear that all

“powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In other words, the Constitution was an agreement of the people (through the delegates they appointed to go and represent their states) to grant to the federal government only specified powers. The states were independent bodies, and they agreed to establish a federal government to create a stronger union—you might call them the “united states” (ok, someone already thought of that…).

When one looks at the text of the constitution you will find nothing that gives the federal government “powers” concerning what I will refer to here as “interpersonal relationships” or what some might call “morality.” By morality or interpersonal relationships I do not mean just marital or family relationships, but virtually all interaction between humans. Interpersonal relationships were left to the states to govern.  For instance, criminal law defines what is and is not acceptable behavior toward your fellow man and gives the state the power to enforce it. Tort law covers much the same topic, but from a private-enforcement perspective: if you harm someone, they can sue you and recover their losses, because it is immoral to harm another person without making it right. Family law deals with both the definition of marriage and the limits on dissolving such a union, and the obligations of parents to children. Contract law addresses what people can agree upon, and covers an incredibly wide range of issues: labor law, trust law, business organizations, principal and agency (such as giving someone power of attorney), finance and investment, and many more. These were all left to the states to decide for their own people.

Contract law deserves an extra note here. The Founders saw clearly the importance of people doing what they agree to do and in the Constitution the delegates agreed (you might say for the people and states that the delegates represented) that in order for the states to be in a union, all states should be prohibited from passing any “Law impairing the Obligation of Contracts.” The Founders knew that the freedom of people to associate with others by agreement would provide stability, economic and otherwise. They agreed that within the freedom of states to regulate personal relationships, one thing a state could not do is enact a law that let people off their contractual promises. And isn’t this fundamental? I believe most regulations could be erased from the books if we boiled it down to “don’t lie in making agreements, then do what you agree to do.” The Founders seemed to think so.

But historically it is indisputable: Washington did not get into interpersonal relationships (defining morality) except when they clearly involved the federal government.  Treason and espionage, for example, were crimes the feds had to deal with. But virtually all other criminal law—punishing people for violating accepted standards of interaction with your fellow men—was a state prerogative.  Washington governed interaction between the states and other nations, while interpersonal relations were left to the states.

The Bill of Rights of the U.S. Constitution affirmed this. It was enacted to make sure that Washington stayed out of the interpersonal relations business.  That sacred First Amendment is a great example. It says “government shall make no law…” Wait, no, it does not say that! It says, in its entirety:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

It was explicitly a limitation on Congress’ (that is, Washington, D.C., the feds)  power.  It placed no limit on the power of states and local government to set local rules of conduct for the citizens of their village, city, county or state.  Democracy was king (pardon the pun) at the local level, where the majority could set the standards of morality for their communities.  

Examples might be helpful here. Some of the early states actually had established churches; the US Constitution left states and localities free to establish religion. Some had religious tests for holding office, or required support of certain denominations. Many restrictions on speech and press existed in states and municipalities well into the twentieth century. Looking to the other end of the spectrum, Nevada has long been known for setting much lower standards for interpersonal relationships, allowing for gambling and prostitution when no other states did. So individuals could choose where they wanted to live, such as in a dry county, or a city free of pornography, or a township with a good school, or village of all Lutherans. You could live in a state that favored Catholics or another that supported Mormons.  You didn’t sue city hall because it collected tax revenue for the Presbyterian Church…you either accepted the fact that you lived in a Presbyterian community or you moved. The country was truly multi-cultural.

So what happened to change all of that? We entered a slippery slope as a result of that marvelous oxymoron, the “Civil War.” States’ rights to self-governance came sharply into question.

We’ll pick up there in my next post.