Getting It Right
Explaining federalism to conservatives.

By Jonathan Rauch, a columnist for National Journal, vice president of the Independent Gay Forum & a writer in residence at the Brookings Institution.
August 7, 2001 8:40 a.m.

h, now we're getting somewhere! In articles that I wrote recently in The Wall Street Journal and on this site, I've argued that the proposed "Federal Marriage Amendment" — a national ban on same-sex marriage — is a broadside against federalism, and that states should be allowed to go their own ways. I suggested that the problem of activist federal judges foisting one state's gay marriages on the whole country is easily remedied with a narrower constitutional amendment barring them from doing just that.

In his reply, Arkes suggests "one more step: [Rauch] could add to his amendment a denial that anything in the constitutions of the separate states may be construed to require same-sex marriage. If he took that step, we might indeed have the grounds for a settlement." OK, here's the amendment:
Nothing in this or any state's Constitution shall require any state to recognize as a marriage any union but that of a man and a woman.

Dear Mr. Arkes: How about it?

I've consistently argued that gay marriage should be left to the states, both to allow small-scale experimentation with what I believe will be good social policy — good for gays, for straights, and for marriage itself — and to prevent an all-or-nothing national culture war. I also believe, as does Arkes, that gay marriage is too sensitive and important to be left to judicial fiat. It should be decided by the political branches.

In Vermont, state judges effectively ordered up a civil-unions program. In Hawaii, judges ordered same-sex marriage (the voters overruled them). Though I don't know enough about either state's constitution to have a good legal opinion, my knees jerk in the direction of thinking that both sets of judges overreached. So, Arkes asks, how about a U.S. constitutional amendment preventing state judges from foisting gay marriage on a state? Would I support that?

No, because I believe in federalism. I can't very well oppose, on federalist grounds, stripping away states' power to pass same-sex marriage while also advocating stripping away state courts' power to interpret state constitutions. I may not have liked what Vermont's judges did, but the question is whether Vermont should be allowed to have a system in which the judges could do it. If the answer is no, then people outside Vermont could wind up deciding how many chambers the state legislature should have, whether state judges are elected or appointed, how often the board of prisons should meet — you name it.

I'm not saying, pace Arkes, that states should be allowed to do anything they want with family and marriage laws. They should not be allowed to enact family laws that violate the U.S. Constitution, as the anti-miscegenation laws did. But I don't believe that banning gay marriage, as three dozen states have done, violates the U.S. Constitution, and I also don't think that adopting gay marriage violates the U.S. Constitution. Unless some federal prerogative is impinged upon (and none was in the Vermont civil-unions case), reining in Vermont's judges is the business of Vermont's voters. So I think the feds should stay out. (I'm surprised to hear myself patiently explaining all this to conservatives who are supposedly proponents of federalism. Oh, well.)

Arkes, however, already favors a constitutional amendment that would withdraw from the states a power (to define marriage for state purposes) that has been exclusively theirs since the republic was born. So he ought to have no federalist qualms about the aforementioned amendment banning judge-ordered gay marriage at both the state and federal levels. I'll be surprised if Arkes accepts this amendment in preference to the Federal Marriage Amendment, but I'd like to know. Finding out would help clear away the Looking Glass rhetoric that Marriage Amendment supporters are using in support of their proposal. Consider the following statement by Arkes:

For our own part, in the Alliance for Marriage, we are willing to take our chances with the electorate in the different states. The amendment simply reads: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

I had to rub my eyes when I read this. I had to read it three times. Arkes says he'll take his chances with the states' electorates, and then in the very next sentence quotes language that plainly, clearly, and unambiguously takes the matter out of the states' hands. The amendment says that no state can allow same-sex marriage even if every voter and legislator in that state favors it. That the amendment strips power not just from judges but from states cannot be rationally contested.

I'm totally perplexed. I know Hadley Arkes to be a bright and sophisticated fellow, so I have to assume he understands the plain meaning of his own amendment. If so, he and other Federal Marriage Amendment supporters are indeed being disingenuous, as I charged in my Journal article, when they insist that their federal ban on gay marriage is nothing but a reining-in of unruly judges. In that case, who, I wonder, is trying to "accomplish [their] move covertly"? On the other hand, I also know Arkes to be an honest and estimable fellow; and even if he weren't, the contradiction between what the amendment does and what its supporters say it does is too glaring to fool anybody. So perhaps Arkes and the others endorsed an overly broad Federal Marriage Amendment because the idea of a narrower amendment had not occurred to them.

If the latter, I offer Arkes the chance to rectify his error by supporting an amendment that would do exactly what he says he wants to do, no more and no less. If he means what he says, he should support the ban on judge-ordered gay marriage instead of the ban on state-approved gay marriage. What do you say, Mr. Arkes? Surprise me.