Goddammit, Clinton

In the wake of the Iowa decision, some of the presidential candidates made their voices heard. Clinton re-iterated her opinion that gay marriage should be left to the states:

Clinton said she favors civil unions "with full equality of benefits." She added, however, that the question of same-sex marriage should be left up to the states, according to The Associated Press.

"The states have always determined age of marriage, other conditions and over time we've gotten rid a lot of discrimination that used to exist in marriage laws," she said.

Leave it to the states? Why, that's brilliant! Don't you agree, State of Virginia circa 1967? From Virginia's brief to the Supreme Court:

The views expressed at length by the Virginia Supreme Court in the Naim case were subsequently adopted by the Supreme Court of Louisiana in State v. Brown, supra. In that case, the Louisiana Supreme Court declared (108 So. (2d) at 234):

"As we view the matter, marriage is a status controlled by the states, and statutes prohibiting intermarriage or cohabitation between persons of different races in no way violate the Equal Protection clauses of the state and federal Constitutions. See 16A C.J.S. Constitutional Law §§ 541, 543, pp. 474, 479-480. A state statute which prohibits intermarriage or cohabitation between members of different races we think falls squarely within the police power of the state which has an interest in maintaining the purity of the races and in preventing the propagation of half-breed children. Such children have difficulty in being accepted by society, and there is no doubt that children in such a situation are burdened, as has been said in another connection, with a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."

They concluded their brief with:

It is difficult to comprehend how any other conclusion could have been reached [by the Supreme Court of Appeals of Virginia in the Loving case]. "Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the Legislature." Maynard v. Hill, 125 U.S. 190, 205. "Upon it society may be said to be built, and out of its fruit spring social relations and social obligations and duties, with which government is necessarily required to deal." Reynolds v. U.S., 98 U.S. 145, 165. Moreover, "under the Constitution the regulation and control of marital and family relationships are reserved to the States . . . [and] . . . the regulation" of the incidents of the marital relation involves the exercise by the States of powers of the most vital importance." Sherrer v. Sherrer, 334 U .S. 343, 354.

The cry of "states rights" was, in fact, a common defense of anti-miscegenation statutes (along with slavery, segregation, etc.). State v. Gibson, an Indiana case which was cited widely by other miscegenation cases, had this dire warning if this power was taken from the states:

In this State marriage is treated as a civil contract, but it is more than a mere civil contract. It is a public institution established by God himself .... In fact, society could not exist without the institution of marriage, for upon it all the social and domestic relations are based. The right, in the states, to regulate and control, to guard, protect, and preserve this God-given, civilizing, and Christianizing institution is of inestimable importance, and cannot be surrendered, nor can the states suffer or permit any interference therewith. If the federal government can determine who may marry in a state, there is no limit to its power .... It may assume, exercise, and absorb all the powers of a local and domestic character. This would result in the destruction of the states .... The state government controls all matters of a local and domestic character. The federal government regulates matters between the states and with foreign governments. There is, and can be no conflict between the state and federal governments, if each will act within the sphere assigned to each .... Under the police power possessed by the states, they undoubtedly have the power to pass ... laws [prohibiting interracial marriage.]

Naim v. Naim, a Virginia case from 1955, said this in defense of the state's anti-miscegenation statute:

Marriage, the appellant concedes, is subject to the control of the States. Nearly seventy years ago the Supreme Court said, and it has said nothing to the contrary since: ...

And then it quoted Maynard v. Hill, which was also cited above.

So should we take it that Senator Clinton is in favor of letting the states decide which races can marry? Or would that be one of those bits of discrimination that "we've gotten rid of"--via federal intervention by the Supreme Court?