Gay marriage: John Yoo and the new federalism

By Bernie Quigley

For The Hill on 8/12/10

It is a little startling to hear Judge Andrew Napolitano on Fox Business publically explaining to millions of viewers ideas which were considered seditious and marginal five years ago. Tea Party ideas demonized by the MSM. Crazy Jeffersonian ideas from the Libertarian ghetto suggesting that states have sovereign rights which are protected by the Constitution. “Are you serious?” Speaker Nancy Pelosi replied when the idea was first suggested to her. The question today is, how many and what kind. The federal government should run the military, control the borders and deliver the mail, Texas Governor Rick Perry said not long a ago. New voices today in mainstream gubernatorial races say defense is enough.

John Yoo, law professor at the University of California, Berkeley, gives a perspective on the federal judge’s Gay Marriage ruling that may fit the times. The federal judge “. . . elevated himself above the collective wisdom of millions of California voters and the considered judgment of state and federal officials” he writes in The Wall Street Journal. He says the Constitution creates a far better approach to decide contentious moral issues: federalism.

“Under our decentralized system of government, states offer different combinations of taxes, spending and rights. Citizens can vote with their feet and live in the states that satisfy their preferences. Arizona, Oregon and Hawaii can compete to attract gay couples dissatisfied with Prop 8 (as if California's fiscal mismanagement weren't reason enough to leave).”

Yoo supports gay marriage as a policy matter but says having the courts mandate it promises trauma of the sort that followed Roe v. Wade.

If the Supreme Court upholds the ruling, laws in 30 states restricting marriage to opposite-sex couples would be null and void. But times have changed since 1973 when Roe v. Wade was pressed upon the states, many of which would have rejected it. The Hill reports that the American public has a more positive view of the Tea Party movement than the Democratic leadership in Congress. This time around the states are ready to defend their sovereignty and autonomy and the clear and legal expressions of their political will.