Gay Marriage Opponents Cite Dubious Left-Wing Legal Argument

On March 26, the Supreme Court will hear oral argument over
whether California’s Proposition 8, the voter initiative which
banned gay marriage in that state, violates the Equal Protection
Clause of the 14th Amendment.In the brief they
submitted to the Supreme Court yesterday, Prop. 8’s supporters
cloaked their case against gay marriage in the principles of
states’ rights, arguing that California should be permitted to ban
same-sex unions without interference from the federal courts. “Our
federal system of government is designed to permit a diversity of
approaches to difficult and uncertain social issues,” the brief
states, “and the democratic process regarding marriage that is
unfolding throughout the Nation shows the genius of that system at
work.”At first glance, that argument appears tailor-made to appeal to
conservative and libertarian advocates of federalism.
Unfortunately, the Prop. 8 defenders also base their case on a
dubious left-wing legal theory that cuts against the very idea of
limited government. Immediately after the statement quoted above,
the Prop. 8 supporter’s brief quotes from Justice Louis Brandeis’
famous dissent in
New State Ice Co. v. Liebmann (1932), where Brandeis
wrote, “it is one of the happy incidents of the federal system that
a single courageous state may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments without
risk to the rest of the country.”Don’t let these words fool you. Brandeis’ goal was the expansion
of state power at the expense of individual rights.At issue in New State Ice Co. was a 1925 Oklahoma
regulatory scheme that granted monopoly powers over the
manufacture, sale, and distribution of ice to a select group of
companies. The law effectively outlawed competition by requiring
any would-be entrepreneur that wanted to enter the ice business to
first provide “competent testimony and proof showing the necessity”
of his business plan to state officials. Needless to say, there was
no legitimate public health, welfare, or safety justification for
this infringement on the right to earn a living. And predictably,
the state regulators were working in cahoots with the
state-sanctioned ice monopoly to eliminate would-be
competitors.What prompted Brandeis to spin this naked act of protectionism
as a “courageous state…experiment?” Remember that Brandeis got
his start in the Progressive movement of the 1890s, where he
lobbied on behalf of vast regulatory powers and urged the courts to
give second-class treatment to those constitutional rights he
didn’t believe to be worthy of respect. In fact, in a letter to
Felix Frankfurter, Brandeis even privately advocated the wholesale
repeal of the 14th Amendment due to the limits it placed on state
power.Supporters of limited government should be wary of any legal
argument that cites Brandeis’ dubious ode to untrammeled state
authority.Indeed, consider how Brandeis’ words were utilized in another
recent high-profile Supreme Court case. When Chicago went before
the Court in 2010 to justify its handgun ban and other elements of
its restrictive gun control regime in McDonald
v. Chicago, city officials cited Brandeis in defense of
their infringement on the right to keep and bear arms. “Firearms
regulation is a quintessential issue on which state and local
governments can ‘serve as a laboratory; and try novel social and
economic experiments without risk to the rest of the country,’” the
argued. Chicago officials should therefore be permitted “the
greatest flexibility to create and enforce firearms policy.”The Supreme Court thankfully rejected this sweeping assertion of
regulatory power.Federalism is a bedrock American principle, but that does not
mean that state governments enjoy free rein to “experiment” on
their citizens in violation of the Bill of Rights and the 14th
Amendment. It’s time to stop invoking Brandeis and instead start
reviving the eloquent words of Justice George Sutherland, who
penned the majority opinion striking down the Oklahoma monopoly in
New State Ice Co. “In our constitutional system,”
Sutherland wrote, “there are certain essentials of liberty with
which the state is not entitled to dispense in the interests of

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Gay Marriage Opponents Cite Dubious Left-Wing Legal Argument

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