In the debate over Ted Cruz’s stand that the issue of the sanctity of marriage should be strictly left up to the states, those who favor a Federal Marriage Amendment such as Governor Mike Huckabee and Senator Rick Santorum are accused of wanting to trample on states rights.
The truth is neither of these gentlemen is opposed to federalism. Federalism is a great heritage of our nation. It allows different states to operate according to the dictates of each state’s citizenry. Take the issue of gambling. My home state of Idaho forbids casinos but allows the lottery while our neighboring state of Nevada has the exact opposite stance, and our neighbor Utah bans all forms of gambling. There is no need for a national law or a national Constitutional Amendment on gambling. Each state can do as it chooses.
Yet our American heritage isn’t limited to the Constitution. It includes reminders sometimes federalism is no longer a viable or an acceptable solution. At the time of the drafting of the Constitution, slavery was legal throughout most of the country. Many of the Founding Fathers held slaves despite some misgivings about the practice. Those who drafted the Constitution left it up to the states and future generations to address the issue of slavery. Over time, most northern states abolished the practice.
Congress tried to hold the country together and preserve the balance between free states and slave states. The 1820 Missouri Compromise helped to secure this peace on the issue for nearly three decades. Congress was so passionate about avoiding stirring up the slavery debate that, for eleven years, Congress enacted a gag rule that had Congress refuse to receive any petition on slavery.
However, gag rules could only silence the slavery debate for so long. Many believe the Civil War could have come a decade early without the Compromise of 1850, which allowed California to enter the union as a Free State, while leaving the status of other territories up for grabs and requiring Northern citizens to help slave catchers catch fugitives. Many citizens were required to violate their conscience and participate in a system they opposed by a mandate of the Federal government.
Illinois Senator Stephen Douglas (D-Ill.) pushed through the Kansas-Nebraska act which opened up territories in Kansas and Nebraska. Under the Missouri Compromise, both territories should have been free but Douglas and the Democratic Congress opted to leave the question open to the territories to vote on. The result was massive numbers of pro-slavery and anti-slavery citizens moving to Kansas and a bloody seven-year range war called, “Bleeding Kansas” which previewed the Civil War.
President James Buchanan in his inaugural address hoped the slavery issue would be settled finally by the Supreme Court, thus starting a long Democratic Party tradition of expecting the Supreme Court to make law. Then the Dred Scott v. Sanford decision was handed down by the court which stated, “A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a ‘citizen’ within the meaning of the Constitution of the United States.” The court further allowed slave owners to take their slaves with them anywhere they went in the country. In theory, they could bring an entire plantation of slaves into a territory or into a free state.
Senator Douglas’ opponent in the 1858 election was a lawyer from Springfield. I suppose he could have comforted his audience and called for more federalism and alleviating the effects of the Supreme Court’s decision so the issue of slavery could be decided by the States, but Abraham Lincoln was made of a better stuff than that. He was a genius who saw the moment clearly and that America was in danger of being overwhelmed. He saw realities others would rather ignore:
“A house divided against itself cannot stand.”
I believe this government cannot endure, permanently half slave and half free.
I do not expect the Union to be dissolved–I do not expect the house to fall–but I do expect it will cease to be divided.
It will become all one thing or all the other.
Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new–North as well as South…
Welcome, or unwelcome, such decision [to legalize slavery throughout America] is probably coming, and will soon be upon us, unless the power of the present political dynasty shall be met and overthrown. We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free; and we shall awake to the reality, instead, that the Supreme Court has made Illinois a slave State.
Lincoln’s rhetoric was genius, but it was dismissed by most of the important people and the political power brokers. In retrospect, it was blind and insane to expect a State’s rights solution to slavery to work in the 1850s. Advocates of slavery had little interest in it. They were determined to bring slavery to every state and territory, just as many up North were awakening to its evil. This was a moral matter, a matter of which the House was divided and that divided house could not stand.
In the same way, it’s just as preposterous in 2016 to believe a States Rights solution to marriage is going to work. For one thing, while many homosexuals would be happy to leave the issue up to the states or to have some sort of civil union law, this will never be agreed to by the movers and shakers that drive the same sex marriage movement such as the Human Rights Campaign. These groups are interested in no accommodation for religious conscience, no protections for religious liberty, but rather the ghettoization of orthodox Christianity.
Should a President Cruz appoint a Supreme Court Justice who overturns Obergefell, it would be a win for sanity but a temporary one ensuring decades of ongoing battles over same sex marriage with advocates of same-sex marriage stripping religious freedom from opponents in any state they gained victory. And with every election, the basic right of Freedom and Religion and Freedom of Conscience would be up for yet another vote election after election as each new President could make a new appointment and shift the national policy and the constitution. Could we keep that up? Would that really be sustainable?
The first Republican President knew the answer, even if some of today’s Republican candidates don’t.
Four years ago, the FAMiLY Leader, a leading social conservative organization in Iowa, knew this when they eliminated Ron Paul from consideration for their endorsement for the Presidency over his stance that marriage ought to be a state’s issue, a stance that earned Ted Cruz the endorsement of the Family Leader’s top leadership this time around. While it may not be as obvious to the FAMiLY Leader as it once was, in light of the fallout of Obergefell, it’s clear a State’s rights position will not work as a long-term solution.
It’s important to note just because someone believes federalism alone is not the solution to a problem it doesn’t mean they will ride roughshod over the Constitution and States rights. While Lincoln knew slavery had to be defeated, he knew that as President he wasn’t unilaterally empowered to end it. The Emancipation Proclamation freed slaves within those states that had rebelled as a war-time measure, and slavery wasn’t banned forever until Congress and the states ratified the Thirteenth Amendment.
Similarly, neither Santorum nor Huckabee has proposed to do anything in violation of the Constitution to address the issue of marriage. Both have endorsed a Constitutional Amendment to establish marriage as an institution between one man and one woman. It’s a hard path to take, but the lawful one, and one that honors the Constitution.
Neither man would countenance the liberal notion that we have a Constitutional Convention in constant session at the US Supreme Court building. Their approach will require the concurrence of thirty-eight states with two thirds of Congress, a difficult road indeed, but not more difficult than the one faced by Lincoln when he saw our nation couldn’t remain divided over slavery.
Again, federalism is a good principle that usually works. Yet, when facing a movement that’s aggressively trying to trample on the conscience of everyday Americans with no regards for any state’s rights, federalism’s not a sufficient answer. Moral clarity is required.
Disclosure: Adam Graham has endorsed Mike Huckabee for President and is author of the ebook, Road to Victory: A Conservative’s Case for Mike Huckabee and is host of the Truth and Hope Report Podcast which is currently airing a series, “Our Man Huck.”
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