The Constitutional Argument for Gay Marriage

About Robert F. Nagel:

Robert Nagel is the Rothgerber Professor of Constitutional Law at Colorado Law School. Before joining the faculty, he served as a deputy attorney general in Pennsylvania. He is author of over 50 law review articles and four books, including his latest, Unrestrained: Judicial Excess and the Mind of the American Lawyer.

Does the United States government have the constitutional authority to legalize gay marriage? At first glance, a national rule defining marriage would seem to conflict with the fundamental principle that the federal government has only limited and enumerated powers. After all, the states have long had primary responsibility over marriage as a legal institution. However, similar intuitions have often proven ephemeral as the scope of the central government's authority has expanded inexorably to include the regulation of agriculture, manufacturing, the environment, and myriad other areas.

[See a collection of political cartoons on gay marriage.]

If the legalization of gay marriage were accomplished by statute, Congress could conceivably rely on its power to regulate commerce. Since marriage is not primarily a commercial activity, the Supreme Court might hold that any connection to commerce is too attenuated to be constitutional. However, Congress could also rely on its power to enforce the Fourteenth Amendment and, although nothing is certain when predicting constitutional decisions, the Court probably would uphold a statute based on enforcing the rights to due process and equal protection.

It is more likely that gay marriage would be mandated by the Court's own interpretations of the 14th Amendment. In a 2003 case that invalidated criminal penalties on homosexual sodomy, Justice Antonin Scalia's bitter dissent argued that the Court was setting the stage for exactly this result. A majority of the justices, however, insisted that they were not necessarily committed to going so far.

[Vote now: Should gay marriage be legal nationwide?]

In any event, there can be no doubt that the overall trend for many decades now has been for both the Congress and the Court to centralize power—including the power to regulate highly personal matters—in Washington D.C. Congress, for instance, is in the business of regulating romantic behavior in the workplace, and the Court sets national policy on abortion.

This centralization reflects a moral perfectionism. The advantages of localism and variety almost always seem less important than achieving someone's idea of progress uniformly across the nation. The consequence is that more and more intimate matters are debated in the inflated, scripted language of national politics. More issues of intense importance are settled by distant figures. And more people feel powerless in the face of large and uncontrollable forces.

• See the 10 cities with the most same-sex partners.
• See a collection of political cartoons on "Don't Ask, Don't Tell".
• Read: Both Sides See Same-Sex Marriage as Winning Issue in 2012.

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marriage,

LGBT rights