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Another View -- Chuck Douglas: Marriage, including same-sex, should be decided by states

May 10. 2013 1:03AM

The United States Supreme Court recently heard arguments in cases involving the federal Defense of Marriage Act (DOMA) and California's Proposition 8, a state constitutional amendment adopted by referendum to ban marriage between homosexual couples.

The major question that all of us should be concerned about is not how California or the Congress wants to define marriage, but where such decisions should be made. The nub of the issue is federalism, the concept that we are a nation of states that met in Philadelphia and created a federal government. We sometimes forget that it is not the national government that created the states, but the other way around.

The states differ from the federal government because only states have what is called "general police power," which includes most of the activities which citizens are involved in at a state or local level. Laws relating to speeding, zoning, planning, adoption, abortion and marriage, have always traditionally been up to the states to decide.

The first major intrusion in this area by the United States Supreme Court was the decision in Roe v. Wade. It took away from the states the sole power to deal with abortion.

The United States Supreme Court should now exercise judicial restraint and stay out of the battles at the state level as to how marriage should be defined. Already several states - including Vermont, New Hampshire and New York - have equal marriage rights by act of the Legislature. In others - such as Connecticut, Iowa and California - those rights have been extended by a state court. Very recently, Maine, Washington and Maryland passed similar measures recognizing marriage equality by popular referendum votes. More than 30 states limit marriage to the union between a man and a woman.

Regardless of your view on the debate between traditional marriage and gay marriage, the fundamental question is at what level of our federal system should these issues be decided.

As long ago as 1858, in a case titled Barber v. Barber, the United States Supreme Court held that the federal courts have no jurisdiction in lawsuits pertaining to divorce or to the allowance of alimony. For 200 years the question of divorce and issues such as alimony, annulments and fault or no-fault divorce, have been decided under the general powers of state governments.

If the federal courts are now going to dip their toe into the question of marriage, then the sequel of divorce will soon follow.

Yes, there will be diversity among the states, but that is exactly the theory behind Justice Louis Brandeis' suggestion that the states are separate laboratories of experimentation and reform. Those 50 states should be able to make choices based upon the demographics and the political traditions and interests of their citizens without the federal government, either at the Congressional or Supreme Court level, imposing requirements on what is or is not a marriage.

Those who want to impose gay marriage or uphold traditional marriage hope to use Congress as the vehicle to either impose gay marriage in those states that do not have it or to uphold the definition set forth in the federal Defense of Marriage Act or DOMA.

That battle should not be fought at the national level but should be left to the 50 different laboratories of social change to be resolved at the level closest to the people. That is what "we, the people" means. Evidence of the limitation on the national government is the 10th Amendment to the federal Constitution, which states: "The 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."

The federal courts should not have interfered with California's popular referendum decision in favor of traditional marriage. Likewise, the Defense of Marriage Act, which passed Congress in 1996, wrongly rejects state government's policy choices and judgments and violates federalism and the 10th Amendment.

As with the issue of abortion, the issue of marriage should be left to the states and no further intrusion into the areas of state sovereignty should occur in Washington.

Chuck Douglas, an attorney in Concord, is a former New Hampshire Superior Court and Supreme Court justice and a former member of Congress.

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