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.

Those gay, gay bourgeois bohemians

From Jonah Goldberg: By embrac­ing gay mar­riage and mil­i­tary ser­vice, the bohemian left admits defeat.

[T]he sweep­ing embrace of bour­geois lifestyles by the gay com­mu­nity has been stunning.

Nowhere is this more evident—and per­haps exaggerated—than in pop­u­lar cul­ture. Watch ABC’s Modern Family. The sit­com is sup­posed to be “sub­ver­sive” in part because it fea­tures a gay cou­ple with an adopted daugh­ter from Asia. And you can see why both lib­eral pro­po­nents and con­ser­v­a­tive oppo­nents of gay mar­riage see it that way. But imag­ine you hate the insti­tu­tion of mar­riage and then watch Modern Family’s hard­work­ing bour­geois gay cou­ple through those eyes. What’s being sub­verted? Traditional mar­riage, or some bohemian identity-​​politics fan­tasy of homosexuality?

. . . .

Or look at the deci­sion to let gays openly serve in the mil­i­tary through the eyes of a prin­ci­pled hater of all things mil­i­tary. From that per­spec­tive, gays have just been co-​​opted by The Man. Meanwhile, the folks who used Don’t Ask, Don’t Tell as an excuse to keep the mil­i­tary from recruit­ing on cam­puses just saw their argu­ment go up in flames.

It’s Time to Change

Jonathan Rauch explains why gays and les­bians need to be more, well, nice:

[W]e—gay Americans and our straight allies—have won the cen­tral argu­ment for gay rights. As a result, we must change. Much of what the gay rights move­ment has taken for granted until now, and much that has worked for us in the past, is now wrong and will hurt us. The turn we now need to exe­cute will be the hard­est maneu­ver the move­ment has ever had to make, because it will require us to delib­er­ately leave room for homo­pho­bia in American soci­ety. We need to allow some dis­crim­i­na­tion and relin­quish the “zero tol­er­ance” mind-​​set. Paradoxical but true: We need to give our oppo­nents the time and space they need to let us win.

In other words, while it was wise for gays to argue stren­u­ously and never give their oppo­nents the ben­e­fit of the doubt, gays can now be kind and gra­cious to their opponents—and they should be. If gays can keep the high ground, they will be able to win the argu­ment with their oppo­nents while main­tain­ing influ­ence as a cohe­sive group.

If, on the other hand, gays and their allies shout down their oppo­nents, they may end up win­ning the argument—gay mar­riage is com­ing, like it or not—even as they dis­solve into meaninglessness.

Two ques­tions, though, for Mr. Rauch:

  1. In the end, does it mat­ter whether gays are “nice” to their oppo­nents? After all, as he pointed out, gays are likely to win the argu­ment based on num­bers alone. (The young favor gay rights more than the elderly. The elderly die and the young rise with their views ascen­dant. Ergo, the gays win.)
  2. And if the cen­tral argu­ment of gay rights is to be treated the same—to be allowed to be nor­mal, to be treated as nor­mal middle-​​class citizens—won’t the move­ment have a hard time main­tain­ing cohe­sion anyway?

H/​t Eugene Volokh.

Edmund White’s My Lives

Edmund White is gay. If you’re not famil­iar with him—and I wasn’t until recently—this is the first thing you’ll notice about him in his mem­oir My Lives. You’ll notice other things, too: his name-​​dropping, over-​​sharing, and devout hedo­nism. These traits are unavoid­able in the con­text of White’s inter­est­ing life, described in vivid, con­ver­sa­tional prose.

Rather than walk­ing through his life from birth to present, White gives us the­matic chap­ters. This for­mat gives us more insight into White’s view of him­self than a timeline-​​bound for­mat. For exam­ple, the first chap­ter  con­cerns his shrinks from child­hood through adult­hood. The chapter’s promi­nence sug­gests that he learned intro­spec­tion early and kept up the prac­tice. His par­tic­u­lar intro­spec­tion was closely tied to his own homo­sex­u­al­ity, which his ther­a­pists saw as sick. Though he would later embrace “the gay,” he agreed with his ther­a­pists then, and his strongly self-​​critical streak shows itself through White’s book and life.

And just as with the first chap­ter, the sec­ond (“My Father”) and third (“My Mother”) out­line patterns—difficulty with ’50s-​​style mas­culin­ity and more-​​friendly-​​than-​​maternal inter­ac­tions with women—that per­sist through later chap­ters. These themes build upon each other, cul­mi­nat­ing in the much-​​foreshadowed final chap­ter, “My Friends,” where White waxes about a series of more and less famous friends, rep­re­sent­ing the cap­stone of life lived by a boy who just wants to be noticed, irre­spec­tive of love or hate.

White does man­age to elide por­tions of his life that he would rather not share, but he doesn’t appear to be hold­ing much back. He goes into very pre­cise detail about gay expe­ri­ences. From sexually-​​charged child­hood games to pay­ing for tricks (and being paid for being one), the reader gets an awful lot of dirt on the author. (Depending on one’s curios­ity, pro­cliv­ity, or dig­nity, the chap­ter on White’s year-​​long rela­tion­ship with a much younger S&M mas­ter should be either devoured or avoided with relish.)

My Lives depicts the absorb­ing path of a gay man who lived through the clos­eted 1950s, the free-​​spirited but bour­geois mod­ern gay life, and every libidi­nous period in between. If that’s the sort of thing that inter­ests you, then White’s book is for you.

Pro-​​life and pro–gay-marriage?

Eve Tushnet, a celi­bate, les­bian Catholic, points out that “there are strong indi­ca­tions that young adults increas­ingly sup­port gay mar­riage, and weaker indi­ca­tions that they are increas­ingly pro-​​life.” She says the (slight) increase in pro-​​life sup­port comes from see­ing fetuses in sono­grams. Similarly, gay mar­riage sup­port comes from know­ing gay peo­ple. Familiarly leads young adults view the issues as ques­tions of fair­ness. Young adults can see them­selves in the fetus or the gay per­son, so they don’t want to treat them differently.

But, Tushnet argues, the sup­port for these “con­tra­dic­tory” posi­tions has a weak basis. Pro-​​life posi­tions are only safe when Roe v. Wade keeps abor­tion restric­tions to things like parental noti­fi­ca­tion and wait­ing peri­ods. Take away Roe, and hor­ror sto­ries about ille­gal abor­tions win.

Gay-​​marriage sup­port is shal­low for a dif­fer­ent rea­son. That sup­port comes from the idea that gays are the same as straights, but

[t]he norms and cul­ture of mar­riage arose to meet the needs of het­ero­sex­ual cou­ples: to min­i­mize the dam­age of unreg­u­lated inter­course and max­i­mize the great social good of chil­drea­r­ing within the nat­ural family.

I have to dis­agree. Marriage has been many dif­fer­ent things. Stephanie Coontz’ Marriage, a History, showed that prop­erty and power were the main ratio­nales for mar­riage for most of his­tory. It was only a cou­ple cen­turies ago that love became impor­tant for mar­riage. Now, love has elim­i­nated the other ratio­nales for mar­riage. You can argue whether that’s good or bad—I think it’s bad or maybe neu­tral, Coontz thinks it’s good. But it means that today peo­ple don’t get mar­ried to reg­u­late inter­course (Let’s just call it sex?) or to ensure chil­drea­r­ing within a nat­ural fam­ily. Expanding mar­riage to include lov­ing gay cou­ples makes sense when gay love is equal to straight love. If that’s the equa­tion, gay mar­riage should win. (And that’s why it is winning.)

But that doesn’t mean I think Tushnet is all wrong. To the con­trary: it’s dandy for love to be such an impor­tant thing in mar­riage, but that means that the sex-​​regulation and the chil­drea­r­ing get shoved out to No Man’s Land. There’s no short­age of advice on sex or chil­drea­r­ing, but we no longer have an insti­tu­tion that auto­mat­i­cally trig­gers new sets of oblig­a­tions and respon­si­bil­i­ties. Maybe it’s time for a new insti­tu­tion? But of course, new soci­etal insti­tu­tions develop organ­i­cally, so you can’t just order one up on your Social Planning App.

California’s lose-​​lose Proposition 8

California’s Proposition 8 would write the tra­di­tional def­i­n­i­tion of mar­riage into the state’s con­sti­tu­tion. The out­come on November 4 will be sad, regard­less of who wins.

The mar­riage that Americans have known for most of their lives—with its expec­ta­tions, rights, and responsibilities—is a recent inno­va­tion his­tor­i­cally speak­ing. The received wis­dom about mar­riage has changed a lot. Polygamy and exclu­siv­ity have been praised and scorned. Legal, eccle­si­as­ti­cal, and parental approval have been some­times nec­es­sary, some­times not. The abil­ity of spouses to inherit prop­erty has shifted: some­times with, and some­times inde­pen­dent of, views on sex roles.

Considering the West’s cur­rent embrace of roman­tic, two-​​person love, and its slow but evi­dent accep­tance of same-​​sex roman­tic rela­tion­ships, for­mal and soci­etal recog­ni­tion of same-​​sex mar­riage seems inevitable. California would do well to embrace that reality.

But California has not embraced same-​​sex marriage—and that is what makes the upcom­ing vote so prob­lem­atic, regard­less of the vic­tor. Yes, the California Supreme Court directed state offi­cials to rec­og­nize same-​​sex mar­riages, but that hardly counts as an embrace by We­–the­­­–People California. The high court’s deci­sion was dik­tat, and it over­turned the 2000 ref­er­en­dum that wrote the tra­di­tional def­i­n­i­tion into statute.

It is not con­cern­ing that the court over­turned a popularly-​​backed statute. After all, when a court over­turns any leg­isla­tive statute, it is over­turn­ing a law backed by the elected rep­re­sen­ta­tives of the peo­ple. If we accept that courts right­fully have judi­cial review, we should not com­plain that a court might over­turn a referendum’s result.

Rather, the court’s deci­sion is con­cern­ing because it is an exam­ple of a type of law-​​making that is unfor­tu­nately com­mon in America. A group with a pol­icy goal, unable to win through the leg­isla­tive process, turns to the courts. The courts, find­ing an implied com­mand in the either the state or fed­eral con­sti­tu­tion, call the pol­icy con­sti­tu­tion­ally required, and so immune from mod­i­fi­ca­tion except by con­sti­tu­tional amendment.

We have seen this law-​​making by judi­cial dik­tat too many times: abor­tion, affir­ma­tive action, and crim­i­nal pro­ce­dure each have inspired inap­pro­pri­ate deci­sions. The case of abor­tion is instruc­tive. Before the U.S. Supreme Court’s Roe v. Wade deci­sion in 1973, states were lib­er­al­iz­ing their abor­tion laws. It was quite pos­si­ble that abor­tion would become legal for a major­ity of Americans in short order.

Roe cir­cum­vented those leg­isla­tive efforts, forc­ing a one-​​size-​​fits-​​all solu­tion on the whole coun­try. Whether the legal­iza­tion of abor­tion is cor­rect as a mat­ter of prin­ci­ple is beyond the sub­ject of this post: the effects of the legal­iza­tion of abor­tion are lam­en­ta­ble. Opponents of abor­tion prob­a­bly would have accepted polit­i­cal defeats in some states as the price of polit­i­cal vic­to­ries in oth­ers. With Roe, how­ever, they felt (jus­ti­fi­ably) they had lost a rigged fight. Rather than sim­ply skulk­ing off and accept­ing defeat, they orga­nized mil­lions of their fel­lows, many of whom would not have par­tic­i­pated in pol­i­tics absent Roe. Now, pro-​​lifers fight, and angrily, for they see a judi­cial field stacked against them. Pro-​​choicers fight too, but for a legal frame­work that seems pre­car­i­ous and under siege.

Compare the American expe­ri­ence to the European expe­ri­ence. There, abor­tion is much closer to being a set­tled mat­ter. Politically, the two sides have fought to a draw. Abortion law there is gen­er­ally nuanced, avoid­ing the either-​​or propo­si­tions of the abor­tion partisans.

The American gay mar­riage debate looks much like its abor­tion debate, and with much the same results. In sev­eral states, pro­po­nents have won out­right vic­to­ries through the courts. In many more states, gay mar­riage is flatly banned. For pro­gres­sives, it must smart that the president’s 2004 vic­tory in Ohio is read­ily attrib­ut­able to the Massachusetts court deci­sion from that year: no court deci­sion, no huge con­ser­v­a­tive turnout, no Bush.

What is the alter­na­tive to judicially-​​recognized same-​​sex mar­riage? Legislatively-​​recognized same-​​sex mar­riage. Perhaps no same-​​sex mar­riage would exist in the U.S. today. Nonetheless, it would not be long before some states would rec­og­nize such unions; and though the acri­mony would be intense for a time, the result would be more sta­ble, because oppo­nents would accept a fair loss (or a com­pro­mise) much more read­ily than losses endured at the hands of a few judges.

A vic­tory for Proposition 8 in California next week would mean a tri­umph of legit­i­macy over chi­canery. It would also be an unfor­tu­nate and offen­sive slap in the faces of California’s gays and les­bians. And it did not have to be this way.


For an excel­lent explo­ration of the con­stantly chang­ing role of mar­riage, read Stephanie Coontz’s Marriage, a History (Penguin 2005). Though she def­i­nitely comes out in favor of the “love match,” and betrays dis­taste for tra­di­tion­al­ists what­ever the cen­tury, her treat­ment of marriage’s his­tory is gen­er­ally fair and readable.