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The Great Disclaimer

When I read in the morning paper about a Republican endorsing freedom, I generally know
everything is right in the universe. This morning, I read that Dick Cheney supports same sex
marriage. In a speech at the National Press Club Monday, the former vice president told the
audience that he believes homosexuals have a right to marry. “I think, you know, freedom
means freedom for everyone,” he said, and freedom, he believes, includes the right of people to
“enter into any kind of union they wished.” But then came the disclaimer. The issue should
ultimately be left to the States, he said. Republicans should recognize this argument for what it
is: a cop out. The reason they do not is because they fail to recognize same sex marriage as an
issue of equality.

The Tenth Amendment states that “the powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” Republicans have always considered themselves stewards of states’ rights because they
equate a powerful federal government with less freedom for the people. Government is naturally
intrusive; therefore the less of it the better. However, the reservation of states’ rights was not
intended as a States-know-best clause, rather it was meant as a limitation on federal power.

After the abolition of slavery, the South very quickly taught the federal government the
difference between freedom and equality. All men were created equal in the Declaration of
Independence; they were not created equal in the States. The federal government had no actual
grant of constitutional power to exercise over state-sanctioned inequality, and, according to the
10th, in the absence of a delegation of power from the Constitution to the federal government or a
prohibition to the States, power is reserved to the States. In other words, “States’ rights”
contained the glaring loophole through which segregation slipped. The equal protection clause
of the 14th Amendment rectified that, on paper at least, and Americans have been embarrassed
about it ever since. Therefore, history informs us that, without some guarantee of equality,
freedom does not necessarily mean freedom for all.

Same sex marriage is an issue of equality. Everyone of legal competence is free to enter into the
union of marriage because marriage is a fundamental right bundled up in our notion of what
freedom is, even if it took a Supreme Court decision to make it so, but everyone, namely Dick
Cheney’s own daughter, does not have the right to enter into a union of his or her choice. If we
want freedom for all, we must be prepared to grant equality as a constitutional imperative.
Republicans cannot take shelter in states’ rights and plausibly contend that freedom means
freedom for all. Only the equal protection clause of the Constitution can guarantee that.