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.