Elder Dallin H. Oaks spoke recently at Utah’s Constitution Day celebration. His talk, titled “Fundamentals of Our Constitutions,” discussed the role of the constitution, as well as a variety of other topics relating to law, religion, and the public sphere. The talk is well-articulated, as Elder Oaks’ talks tend to be, and sets out some specific ideas about politics which bear further discussion.
For the moment, I wanted to focus on one particular portion of the talk. Elder Oaks writes that:
Another great fundamental of the United States Constitution is its federal system, which divides government powers between the nation and the various states. This principle of federalism is at the heart of our Constitution. Unlike the next two fundamentals I will discuss, which were adaptations of earlier developments in English law, this division of sovereignty between two government levels was unprecedented in theory or practice. In a day when it is fashionable to assume that the national government has the power and means to right every perceived injustice, we should remember that the United States Constitution limits the national government to the exercise of powers expressly granted to it. The Tenth Amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively or to the people.”
This principle of limited national powers, with all residuary powers reserved to the people or to the state and local governments, which are most responsive to the people, is one of the great fundamentals of the United States Constitution.
In my lifetime I have seen much neglect of this fundamental constitutional principle. For example, the power to make laws on personal relationships is one of those powers not granted to the federal government and therefore reserved to the states. Thus, the ordinary laws governing marriage and family rights and duties are state laws, subject to the power of national law to govern the extent to which the law of one state is binding on others. The dominance of state law in these personal matters would have been changed by the Equal Rights Amendment (E.R.A.) proposed about 30 years ago. The dominance of state law will also be changed if, after full review, federal courts decree that a state law on marriage is invalid under the United States Constitution. Whatever the merits of current controversies over the laws of marriage and child adoption and the like, let us not forget that if the decisions of federal courts can override the actions of state lawmakers on this subject, we have suffered a significant constitutional reallocation of lawmaking power from the lawmaking branch to the judicial branch and from the states to the federal government.
That is, Elder Oaks argues that federal courts should not hold that citizens have a right to marriage under the U.S. constitution. Rather, federal courts should decline to rule in this area, because marriage laws are state laws, and bringing them under the scope of federal courts is a federal seizure of a power which should rightfully be preserved for the states.
One suspects that this paragraph is aimed at Perry v. Schwarzenegger, where a federal court recently ruled in favor of same-sex couples. However, as some commenters have noted, Elder Oaks’ statement is sufficiently broad that it would apply to Loving v. Virginia, the 1967 case which invalidated laws prohibiting interracial marriage. That is, if law were to adopt Elder Oaks suggestion and proscribe federal interference with state definitions of marriage, then Loving would not exist. That would be a very bad outcome.
I hope that this paragraph and its application were simply an inadvertent oversight, and that Elder Oaks will clarify his remarks. Is he really suggesting that Loving was wrongly decided? As a civil rights advocate, I cannot support the idea that Loving v. Virginia was inappropriate. (And I think that a critique of Loving from a church leader is especially problematic, given the backdrop of deeply problematic prior statements against interracial marriage by church leaders, and ought to be made very cautiously if at all.)
Loving v. Virginia was a key step forward in the advance of civil rights. The racist web of so-called anti-miscegenation laws which Loving overturned — all of them approved at the state level — was an abomination. I know that opinions inevitably vary on issues of law and politics, but I would hope that in 2010, people can generally agree that Loving v. Virginia ought to be praised, not criticized.