With the Marriage Protection Amendment coming up for a Senate
vote this Tuesday, there is a renewed debate over whether the
proposed amendment is necessary, or the issue is better left to the
states.
While the issue is understandably contentious, there are many
compelling reasons why conservatives should support a federalist
approach.
There are two main objections to leaving the matter to the
states. The first is that an institution as fundamental as marriage
is of such importance that it rises to the level of being a federal
matter.
But once conservatives begin to interpret federal power broadly
in cases where an issue is important enough to them, it paves the
way for liberals to use federal power in ways that conservatives
would find objectionable.
If a Democratic Congress wanted to amend the Constitution to
outlaw the death penalty, conservatives would rightly argue that it
should be left to the states. But what would prevent liberals from
arguing that life and death is such a fundamental moral issue
facing our society that it necessitates a federal solution?
Conservatives have long argued that Roe v. Wade should
be overturned so that abortion can be a state matter. In his
dissent
in the 1992 Planned Parenthood v. Casey decision, Justice
Scalia argued against “the imposition of a rigid national rule
instead of allowing for regional differences” with regard to
abortion. If conservatives are willing to accept a nation in which
abortion is illegal in Utah and legal in, say, Massachusetts, it
shouldn’t be considered unconscionable to accept a world in which
gay marriage is lawful in some states.
THIS LEADS TO the second main objection to a federalist approach to
gay marriage. Some conservatives argue that they’d love to leave
marriage to the states, but this is impossible because liberal
activist judges will overturn bills passed by state legislatures
banning gay marriage. Also, courts may overturn the Defense of
Marriage Act, which was enacted in 1996 to make sure that no state
would be required to recognize same-sex marriages from other
states.
But these issues can be resolved by crafting a different kind of
marriage amendment. Instead of banning gay marriage at the national
level, an amendment could be written to empower states to decide
the issue for themselves, without the interference of courts.
Michael Greve of the American Enterprise Institute has already
suggested
an amendment that would effectively write the Defense of
Marriage Act into the U.S. Constitution so that states wouldn’t be
forced to recognize out of state marriages. Such an amendment would
be aimed at preempting challenges under Article IV of
the U.S. Constitution, which says, “Full Faith and Credit shall be
given in each State to the public Acts, Records, and judicial
Proceedings of every other State.”
Greve’s amendment could always be expanded to specify that the
definition of marriage shall be determined by each state
legislature, or, by a statewide referendum. And it could be written
in such a way to make sure that a court cannot interpret the law so
as to require a state to legalize same-sex marriage.
Some may respond that such an amendment would still be intrusive
on state power by specifying which branch of state government
should decide an issue, and by telling courts how they have to
interpret the law.
But it is far less meddlesome than the text of the proposed
amendment up for vote in the Senate, which reads, “Marriage in the
United States shall consist only of the union of a man and a woman.
Neither this Constitution, nor the constitution of any State, shall
be construed to require that marriage or the legal incidents
thereof be conferred upon any union other than the union of a man
and a woman.”
Such an approach deprives any state from ever allowing gay
marriage, even if a majority of the population, and the state
legislature, supports legalizing it.
BUT THERE IS A FAR more practical reason to tailor the amendment to
allow each state to set its own policy. The amendment currently
under consideration by the Senate does not have the support of
two-thirds of the Senate, which is required to amend the
Constitution.
If the amendment were altered as I have suggested, it may
attract the votes of senators such as John McCain who say they are
voting against the current amendment because they think marriage
should be left to the states. Those who are unwilling to compromise
on the language of the amendment are accomplishing nothing but
guaranteeing the status quo.
It’s easy for someone to favor state’s rights when doing so
benefits one’s own position, but the true test of whether somebody
is serious about state’s rights is if that person is willing to
tolerate outcomes in other states that conflict with one’s own
views. By allowing states to define marriage on their own terms,
conservatives would be proving that federalism is not a tactic, but
a principle.
Philip Klein writes from New York. He can be contacted
through his website: www.philipklein.com.
