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.