Should the Social Institution of Marriage Be Left to the States to Regulate?
Lawrence was implicitly a federalism case. It asked the Court to either impose a single federal rule prohibiting anti-sodomy laws, or let the states regulate in the field private sexuality on a state-by-state basis. There was an argument, derived from history and tradition, for deferring to the states on this issue: Traditionally, morals, public health, and private relations have been the purview of the states. The Court, however, identified a constitutional right that transcended the relevant state criminal laws: the right to sexual privacy. It chose the right to be let alone over the states’ rights to dictate social and moral arrangements. Now, in the Utah case, another, broader federalism issue has been raised: Does the federal Constitution define the parameters of marriage, or is this issue to be left to the states? Again, tradition and history argue for leaving this issue — traditionally within the states’ purview — for the states to decide. This time, the countervailing right t
