So last week, Kentucky Senator Rand Paul went on Bryan Fischer’s radio program, and if you’re familiar with either of those two, you can probably guess at the level of awful that ensued. Fischer asked Paul for his opinion on the Defense of Marriage Act (DOMA) which excludes same-sex couples from being legally married in the eyes of the federal government, regardless of whether the states they live in already recognize same-sex marriage. Initially he hedged the issue, focusing on how he supports the existing state-level bans on recognizing same-sex marriages, rather than what the federal government’s policies should be. But before you break out the champagne because finally even socially-conservative libertarians are knocking off the Adam-and-Eve not Adam-and-Steven nonsense, take note of the rest of what Senator Paul said:
I have said before in the past and I continue to maintain that we should try to keep it as a state issue. My fear is that in federalizing it we are going to lose the battle for the whole country and keeping it state by state, which is the way marriage has always been adjudicated, that we’ll still have areas that will continue to have traditional marriage.
In a nutshell, he doesn’t see DOMA as taking a political stance on the issue of marriage. It’s just an extension of the right of individual states to ban same-sex marriage. So, if the federal government didn’t have DOMA, those states’ bans wouldn’t have carried the same weight. The whole idea is strange though, since you realize the same argument could be made in reverse – the federal government’s failure to recognize same-sex marriage infringes on the rights of the states that have started legally recognizing same-sex marriages. But apparently those states don’t count. After all, Senator Paul later complains that those are merely a few “urban centers” that shouldn’t be “able to dictate for the rest of the country what our definition on marriage is.” So, having the federal government’s policy match some of the states’ policies is a valid protection of some states’ same-sex marriage bans, but tyranny if it’s instead matching the policies of states that legally recognize same-sex marriage. It’s heads Rand Paul wins, tails you lose.
The states in black ban any legal contract which resembles marriage between people of the same sex. Those in dark red ban same-sex marriages and civil unions, while the lighter red only marriages. Hawaii, in pink, has a streamlined process for the legislature to forcibly unrecognize same-sex marriages should it choose to do so. Senator Paul’s argument is essentially that these states’ statutes need to be federally supported more than those in other states that legally recognize same-sex marriages. From here.
This support for the federal government playing an active role in supporting some states’ rights is rather interesting to hear coming from Senator Paul, given his previous statements on the Civil Rights Act. Last year, he made quite clear that while he supposedly disagreed with segregation, he thought it wasn’t the federal government’s place to desegregate private businesses. In that context he couldn’t swallow the idea that the federal government had the right to intervene in setting a national standard for how those businesses should operate, while in this situation, he’s quite enthusiastic about it propping up a different position he supports.
I suppose I should give him credit in that he might be drawing a distinction between the government’s right to regulate privately owned businesses and its subsidiary states, but Senator Paul seems to think the federal government should be run like a business, with firing rights on the basis of unsatisfactory performance. It seems important that we ask whether Senator Paul’s support for federal intervention (even if he rationalizes it as federal inaction) in one case but not the other is based on something other than that discrepancy? Perhaps, he isn’t as supportive of desegregation as he is of the denial of rights to same-sex couples. So, he’s willing to accept some federal oversight in one case, but not the other.
