ALL ONE THING OR ALL THE OTHER

Posted in Quick Hits on February 8th, 2012 by Ed

I have minimal time tonight so I apologize for not giving this topic the attention it deserves. From Lincoln's famous "house divided" speech:

In my opinion, it will not cease, until a crisis shall have been reached, and passed. "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.

Abe is referring to the various attempts to compartmentalize, minimize, or otherwise make the issue of slavery conveniently recede into the background so politicians would not have to deal with it. Of course they all failed and ultimately the nation had to confront the question directly and decide it definitively.

For years now the Supreme Court has been doing its damnedest to pass the hot potato on gay marriage. Different states have passed different laws regarding it and different federal courts have issued conflicting decisions. Because the Full Faith and Credit Clause of the Constitution requires things like marriage licenses issued in one state to be recognized as valid by others, it simply is untenable for this patchwork, confusing approach to continue. Now that one federal district court has ruled California's Prop 8 unconstitutional we have reached the decision point. Gay marriage bans cannot be unconstitutional in one state or one federal court district but constitutional in others.

We have kicked the can down the road for too long already. It is time to decide whether we will become all one thing or all the other. Is this legal or is it not? Will all states recognize legal gay marriages or will none? The Supreme Court appears to be painted into a corner. An appeal of this decision is a certainty and it is unimaginable that the Court would be so derelict in its responsibilities that it would not accept the case. My confidence in the current Court to make the correct decision here is shaky, but regardless we need this issue to come to a head. The status quo is untenable and it is time for the Supreme Court to do its job.

As an aside, if the dissenting opinion in the Perry case is any indication we are in for some disastrously poor legal reasoning from the gay marriage opponents on the Supreme Court.