Thursday, August 5, 2010

"Contradictory" marriage rulings actually aren't.

In light of recent rulings on same-sex marriage in Massachusetts and California, some people have asked how those rulings can be reconciled. If one court says that the state has the right to define marriage, while another limits that right, are those courts not saying exactly the opposite things? Actually, no, they are not.

The Tenth and Fourteenth Amendments are both the law; the former protects the rights of the states against the federal government, while the latter protects the rights of individuals against the states. Since states have rights against the federal government that they do not have against their own people, the rulings can easily be reconciled.

In the machinery of government, the Tenth and Fourteenth Amendments can be envisioned as ratchets connected in series. Each can turn in only one direction, namely, the direction of greater protection for rights against government. The turning of both of the ratchets controls the machine's output.

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