‘States, right?’ Not in the gay marriage debate

THE PRESIDENT, WHO BELIEVES so strongly in states’ rights in other contexts, should let the states do their jobs and work out their marriage laws before resorting to a constitutional amendment. With those words, the editors of the New York Times (Feb. 25, 2004) summed up one prong of the public criticism of the President’s proposed Defense of Marriage Amendment.

President Bush is not exactly a poster-boy for “states’ rights,” but to the extent that he points to Justices Thomas and Scalia as his ideal jurists, the question is a good one: to what extent is a Federal Marriage Amendment compatible with Federalism?

This Federalist’s answer, in short: They fit quite well.

The Left seems to have discovered “states’ rights” this year, and many point to hypocrisy of those Federalists who do not support a “states’ rights” solution to the gay marriage issue.

But “Federalism” is not synonymous with “states rights.” Federalism is an ideological commitment to the appropriate division of power between Federal and state governments. Where the Constitution does not pre-ordain the solution, Federalism calls for a pragmatic apportionment of power, not knee-jerk endorsement of “states’ rights.”

For the marriage question, a Federal solution is not just pragmatically appropriate. It’s also inevitable. And, for those who’ve forgotten, it’s long been a federal issue.

The baseline form of marriage – be it “one man – one woman,” “two people,” or “more than one person” – is most pragmatically regulated at the national level. Most obviously, our national legal and financial systems have already integrated marriage into their basic structures. Insurance, tax, federal criminal law (e.g., spousal privilege), and countless other legal/financial matters depend on marriage. Inconsistency among the states severely hampers commerce, a core Federal concern under Federalist principles.

Moreover, the federal government has a strong interest in family structure. The last century’s system of social programs (predominantly erected by liberals) are greatly affected by marital status. Will the federal government’s social programs draw lines between similarly situated “marriages” simply because of the marriage laws of the several States? Will gay couples in Georgia stand pat while gay couples in California collect Federal benefits? Should they?

Finally, the Federal government has a strong interest in the protection of children (Prof. Mary Ann Glendon spoke eloquently to this point last week in the Wall Street Journal). In a nation where freedom of movement is not only a constitutional value but also an increasing reality for mobile families, how will children fare when their family’s legal structure changes depending on the state in which they currently move? Custody battles will become all the more ugly when same-sex “parents” can try to game the system by fleeing the state, kids in tow. And hospital visitation rights should not vary wildly on the state in which a family’s vacation takes a tragic turn.

The above pragmatic concerns strongly suggest that a federal resolution of the marriage question is appropriate. But that justification aside, a national solution strikes this Federalist as appropriate if only because a national solution seems inevitable.

The Federal courts may enforce a national norm on the states. In Romer and Lawrence, the court has grown increasingly eager to force pro-homosexuality positions through the states. Justices may have disclaimed gay marriage in Lawrence, but that is hard to swallow from a legal institution that has grown bolder every year in taking sides in these culture wars. The logic of Lawrence and Romer destroys the foundation of any laws that might preempt someone making his own decisions about the sweet mystery of sexual life.

The Court has made it increasingly clear that in matters of sexual liberation, the life of the law is not logic, but experiment. The Court’s own doctrines leave it with no principled opposition to gay marriage (or polygamy, or any other form of “marriage”). Should we simply assume that they’ll suddenly discover restraint – and, in waiting, allow Liberal states to spend years building up inertia by handing out thousands of gay-marriage licenses? Those horses won’t return to the barn; to wait for the Courts is to enact gay marriage by default.

Liberals are also lining up to challenge Full Faith and Credit defenses of states; why else would gay couples flood San Francisco and return home? Certainly not to watch their marital benefits vanish. They’re picked California as the epicenter, not outer limits, of the gay marriage battle.

The Left has declared national war on marriage. There is no reason why Federalists should handcuff themselves in a state-by-state resolution in this case. Given that gay marriage will be decided at the federal level in a matter that will likely pre-empt states that wish to dissent from gay marriage, this Federalist sees no shame in fighting back at the federal level. And at least the Right seeks to do it through an original Constitutional tool – Article V – instead of through a Court-centered social policy power-grab wholly foreign to the Framers.

Finally, let us not ignore the obvious: the form of marriage – one man and one woman – has long been a federal issue. The basic structure of marriage has never differed from state to state (in 1789, who could have dreamed of “alternative” marriages?), and the federal government has vigorously enforced its notion of marriage on the states before. The Union refused to accept not only Utah, but also Arizona, New Mexico, and Oklahoma, until each renounced polygamy. The federal norm of marriage – one man, one woman – was enforced there. Likewise, the federal courts enforced their colorblind notion of marriage on the states

Charges of “states’ rights” hypocrisy, at least those directed at Federalists, simply don’t hold water. “Federalism” only requires deference to states where the Constitution requires it or, where the Constitution is silent, where pragmatism requires – in short, not here. The Left’s new fondness for “states’ rights” is an amusing development but an empty rallying cry.

Adam White is the Editorial Page Editor of the Record. Adam writes only for himself, and not on behalf of any law student organizations. For a Federalist op-ed against a national solution, I recommend John Yoo, “Let States Decide,” Wall Street Journal, Feb. 27.

Adam White is the editorial page editor of The Record.

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