Marriage federalism

So President Obama has finally done what every­one thought he was going to do: he endorsed gay mar­riage. (Bully for him for doing it before the elec­tion. Though Biden’s loose lips basi­cally forced him to.) But there’s still an argu­ment about his qual­i­fi­ca­tion: he thinks states should be allowed to choose whether to have gay mar­riage. He’s right. (And I hope he stops evolv­ing right there.)

There are good rea­sons for let­ting states con­trol mar­riage. Marriage and fam­ily law has tra­di­tion­ally been a state issue. They have the exper­tise in this area.

The fed­eral gov­ern­ment does not. Federal laws deal­ing with gay mar­riage gen­er­ally pig­gy­back on state laws. (This is a rea­son to ques­tion the wis­dom of DOMA.) When the fed­eral gov­ern­ment mucks around in marriage—which affects lots of related inter­ests, like adop­tion, inher­i­tance, and benefits—unforeseen issues can become incred­i­bly thorny. And while fed­eral courts could be expected to decide the issues rea­son­ably, they’re already over­bur­dened, and adding a host of fam­ily law issues will only add to that burden.

Traditional prin­ci­ples in favor of fed­er­al­ism also coun­sel let­ting states own mar­riage. The national gov­ern­ment has lim­ited pow­ers, gen­er­ally related to national wel­fare, while states are left to run their own inter­nal affairs, so long as they fol­low the Constitution and don’t intrude on national affairs. This divi­sion of sov­er­eignty puts deci­sion mak­ing power at the low­est pos­si­ble level, ensur­ing that those most affected by gov­ern­ment action don’t have to talk to some­one far away—by dis­tance, inter­ests, or beliefs—to get heard.

Apart from legal prin­ci­ples, there’s real­ity. All it takes is look­ing Roe v. Wade—the Supreme Court deci­sion that legal­ized abortion—and the effects it had on America. The deci­sion ripped the issue away from the states just as many were begin­ning to come to a con­sen­sus that abor­tion should be legal in some cir­cum­stances. The mod­ern, socially con­ser­v­a­tive Republican Party can thank Roe for its exis­tence. The for­mal legal­iza­tion of abor­tion also didn’t have much effect on abor­tion access. In many states, abor­tion is effec­tively unavail­able or nearly so, thanks to oner­ous regimes. (Even sup­port­ers of Roe, like Justice Ruth Bader Ginsburg, acknowl­edge that it went to far and poi­soned politics.)

Even if you think that mar­riage is a fun­da­men­tal right (not some­thing I agree with, even as a gay-​​marriage sup­porter), you should ask whether you think imme­di­ate, national gay mar­riage is worth another quar­ter cen­tury of pol­i­tics divided along social lines. As a gay mar­riage sup­porter dis­mayed by the state con­sti­tu­tional pro­vi­sions around the coun­try ban­ning gay mar­riage, I still rest com­fort­ably know­ing that in 10 or 20 years, all those pro­vi­sions will be gone. Young peo­ple sup­port gay mar­riage, and as they get more power and older oppo­nents of gay mar­riage die or con­vert, the tide will shift enough for gay mar­riage to become the law of the land in every state.

Letting that process run nat­u­rally will allow our pol­i­tics to become more sane, more respect­ful. And you’ll still get what you want.