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.

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.

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.