Federalism and same sex marriage – part III

Part III – Same sex marriage: federalism as a wise strategy?
(Part I of this series is here, Part II is here)

When the question of federalism comes up, my progressive friends have consistently cited gay marriage as an example of the value in federalism. It seems like a good case for a number of reasons. If same-sex marriage were simply up to a national vote, it wouldn’t pass – so state-by-state certainly means more people having access to it than otherwise. Even more, one of the big hurdles for spreading same sex marriage seems to be the fear of the unknown. Now that we have some states were folks can get married and no evidence of negative consequences, it’s a lot harder to prey on that fear. Basically: once it’s normalized in a few places it ceases to seem so odd, and there frankly is nothing else blocking it.

I don’t disagree with that argument, but I do want to push back on it a bit.

While I am emphatically in favor of at least some people getting the opportunity, I do wonder whether the snowballing argument really is true. Is the general shift in favor of same sex marriage really driven by the fact that it’s happening in some places? Or is that simple correlation, not causation? I think it’s much more the latter. There is a broad trend in society of acculturation, acceptance, tolerance, etc. Would that not be true in a world where the national government was empowered to restrict same sex marriage? I very highly doubt it. In fact, if the national government had sole discretion on the matter, I think there is a case to be made that the national elite consensus would grow just as strong, if not stronger. I’m not one who is enthusiastic about ‘heighten the contradictions’ arguments, but I do think there is something to it.

Again, I’m not saying that things would be better on the specific matter of same-sex marriage in world of simple national control. It certainly wouldn’t. I’m just saying that it’s not quite so cut and dry, even on the issue that seems like a powerful case in favor of the progressive nature of federalism.

But really there is a larger issue going on here. Namely, it’s sort of silly to think that same-sex marriage is a local issue just by nature of it being a matter of equality. Maybe the decision to get involved in marriage at all is a local decision. But one powerful argument for same sex marriage is an Equal Protection argument. If states are going to be in the business of marriage, they can’t arbitrarily bar one class of people from receiving them. That is: same sex marriage is a right insofar as the opportunity for ANYONE to marry is offered.

The fact that it’s framed as a right is, of course, important. And it really suggests that framing this as a matter of ‘federalism’ doesn’t really make sense. In fact, one of the ways that federalism is potentially more friendly to progressive goals (which I often forget about when I bash federalism) is that it often creates floors of guaranteed rights without setting any constraints on the ceiling. That is to say: gay marriage can’t and won’t be nationalized in the wrong way—a national ban is unlikely to pass, of course, and would face serious judicial challenges if it did. It can only be nationalized in the right way: if it comes to be seen as a fundamental right, which would simply overwhelm any concern for state rights.

Still, that isn’t really an argument FOR federalism so much as it’s an argument for an active and energetic enforcement of constitutional rights.

And, in fact, this is really my point. As much as I dislike the structure of federalism, I’m not proposing constitutional amendments to restructure our system. What I really want is for all the other parts of the Constitution which empower the national government to be empowered in the broadest possible terms. The Equal Protection Clause should be interpreted to secure the rights of minorities against state encroachment. The Commerce Clause should be interpreted to enable Congress to pass sweeping regulations (like the ACA). Preemption should be interpreted broadly to restrict state intrusions into national issues. And so on.

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3 Responses to Federalism and same sex marriage – part III

  1. David says:

    “Still, that isn’t really an argument FOR federalism so much as it’s an argument for an active and energetic enforcement of constitutional rights.”


    I would note that EP isn’t really about rights. Much like PDP, it’s about the limited role of government. (My view of the federal constitution generally is that it’s almost entirely about the limited role of government and not about individual rights, so perhaps I’m biased.)

    One aspect here that you’ve left out is the role of the state judiciary in enforcing the state constitution. State constitutions can have the same text as the federal constitution and nonetheless provide greater rights or protections to individuals. They can also provide for positive rights, such as a right to education or food. To the extent you’re factoring in federal judicial enforcement of the federal constitution as a limit on federalism, you could also factor in state judicial enforcement of the state constitution as an expansion of federalism (especially to the extent that state constitutional enforcement would moot the need for federal judicial intervention). And there are very strong reasons to say that a healthy state constitutional federalism (as opposed to mere legislative federalism) is important for progressive reasons. That’s especially true because the federal constitution sets a floor on rights that makes it harder for state constitutional federalism to harm rights than to increase them.

  2. Charles says:

    Yeah, that’s an interesting and true argument. Hadn’t really thought about it in that way before.

  3. website says:

    Even though I truly like this post, I believe there was an spelling error near to the finish of your third sentence.

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