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Let the states decide

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By Bruce Ramsey
Monday, April 1, 2013, 9:00 p.m.

In the case of Hollingsworth v. Perry, argued last week, the U.S. Supreme Court is being asked to declare same-sex marriage a right in all 50 states. It should not.

Twice, same-sex marriage has been on the ballot in Washington state — in 2009 for the substance and in 2012 for the name — and twice I voted for it. I'm still for it, but I'm for the states deciding it on their own time.

Next door to Washington is Idaho. In 2006, 63 percent of Idaho voters voted to limit marriage to a man and a woman. In 2004, 57 percent of Oregon voters did the same. In 2007 its Legislature passed a civil-union law.

Three states, three answers, although none is necessarily a permanent answer.

In uber-progressive Seattle, same-sex marriage feels like a constitutional right already, which makes it easy for people there to urge the Supreme Court to proclaim it one. And that would erase the votes of Idaho and Oregon.

Really it would erase the votes of Washington as well, both in the Legislature and by the people. Such a ruling would declare that same-sex marriage was never any of the states' business, that, as one of the legal briefs says, “the issue was taken out of the People's hands in 1868, when the 14th Amendment was ratified.”

And that's not believable. The aim of the 14th Amendment was to protect black Americans. Race is a special issue in American history; we fought a war over it and enacted four constitutional amendments about it — the 13th, 14th, 15th and 24th. The 14th Amendment's phrase “equal protection of the laws” is not limited to race, and the Supreme Court has used it liberally. But when one clause is stretched so far, it swallows up other things — in this case the legitimate rights of the states.

Same-sex marriage is not in America's founding documents. It fits with their spirit, but is still a new thing. It has been a mainstream issue for only 20 years, since a ruling in 1993 by the Supreme Court of Hawaii.

The first state to adopt it and keep it was Massachusetts in 2003. Ten states now have civil unions and nine others have full marriage. Only Maine, Maryland and Washington have adopted full marriage by a vote of the people.

Our Democrat president came out for same-sex marriage on May 9, 2012. Before that, President Obama was for civil unions but not marriage, a position his Justice Department now argues is unconstitutional.

By the original meaning of the Constitution, it is the federal redefinition of marriage that's unconstitutional. Under the 10th Amendment, the Defense of Marriage Act, signed by President Clinton in 1996, is unconstitutional. Expanding marriage is up to the states.

And for almost 20 years, the campaign for gay marriage argued exactly that. Let the liberal states run ahead. And they have.

America is still divided. In the West, every Obama state in 2012 but one, New Mexico, has at least civil unions, and no Romney state has them.

But opinion is moving in all the states, and in the same way. Same-sex marriage now has huge majorities among the young, and it is clearly going to win.

The court should let it play out.

Bruce Ramsey is a columnist for The Seattle Times.

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