Mr. Yoo, a law professor at Berkeley, wrote an opinion piece in today’s Wall Street Journal that makes me question his ability to teach law.  He argues for a federalist approach to gay marriage, i.e. let the votes of each state decide.  Though I agree with many aspects of federalism, to use it as a means to reduce the individual liberties of a minority (or a majority) seems illogical.  And just not practical.  I have the following questions for Mr. Yoo:

• Would you have used this same argument for slavery and women’s rights?
• Is a couple only to be recognized in the states that allow it?
• If one is hospitalized in a state that does not recognize gay marriage, is their spouse without visitation rights?
• How about if they move for a job to a state that doesn’t recognize them, are they no longer married?

In his article, he uses a quote from Hamilton ‘that the Constitution would never permit the federal government to “alter or abrogate” a state’s “civil and criminal institutions [or] penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals.”‘  I entirely agree with this point but it does not suggest that Hamilton would have accepted a state doing the same.

It has been stated many times here and elsewhere that the federal government was originally defined by its power to defend us and to protect our personal property, no matter if the threat was from outside our borders or within.