March 15, 2004,
Senator Orrin Hatch may soon propose a constitutional amendment that would permit a state-by-state patchwork definition of marriage. (National Review has endorsed the Hatch alternative.) Some see this proposal as an embodiment of federalist principles; it is not. The notion that federalism permits or demands a hodgepodge definition of marriage fundamentally misunderstands the family's place in the structure of American democracy. This nation must have and will have a uniform definition of marriage.
It is true that, in our federal system, the states have a responsibility to regulate marriage. In accordance with the principles of federalism, the states can and should be permitted to regulate such matters as degree of consanguinity, age of consent, and the rules of divorce. Yet it is a categorical error to subject the essential definition of marriage to state regulation. The Founders did not understand either federalism or the family in this way.
The Founders took the fundamental meaning of marriage for granted. To them, and to generations of Americans that followed them, marriage and family were part of an extra-governmental realm upon which the sphere of politics depended for its survival. While it was thought that the states could adjust the tangential specifics of our taken-for-granted social institutions, the Founders never imagined that legislatures or courts might revise the basic, definitional aspects of marriage itself.
Consider that the state of Utah was only admitted to the union on the condition that it would abandon polygamy. That precedent clearly shows that, when the fundamental definition of marriage was at stake, a uniform, national solution was deemed necessary and proper. To understand the place of marriage and family in American democracy, we must return to Tocqueville. Tocqueville saw marriage and family as one of several extra-political institutions on which healthy democracy rested: These extra-political institutions had the effect of countering dangerous trends toward excessive individualism, materialism, and state centralization.
We can see the truth of Tocqueville's insight when considering Scandinavia. The Scandinavian family has collapsed and has been replaced by a massive, centralized welfare state. If the American family is dissolved by social redefinition of marriage, then just as Tocqueville predicted, we shall be subject to the "soft despotism" of a centralized bureaucracy. In Scandinavia, this has already happened.
Two recent essays help put marriage in its proper federal context. Matthew Spalding, an important authority on federalism and the Founders, has firmly endorsed the Federal Marriage Amendment. And (with Spalding's assistance), former U.S. Attorney General Edwin Meese recently endorsed the FMA in the Wall Street Journal.
Spalding and Meese draw a clear distinction between state regulatory responsibilities on one hand, and the fundamental definition of marriage on the other. This also gets to the fundamental definition of federalism itself, which, of course, does not refer only to differences among the states. In its full manifestation, federalism requires an agreement on certain fundamentals necessary for national unity, as well as provision for local differences. Here is Meese on how the definition of marriage fits into this equation:
Society isn't harmed when high-tax states live side by side with low-tax states. The market adjusts to the inconsistency. Not so with marriage. A highly integrated society such as ours with questions of property ownership, tax and economic liability, and inheritance and child custody crossing state lines requires a uniform definition of marriage.I believe Meese is correct, and in more ways than one. The most obvious point here is the question of practicality. It is sometimes claimed that this country once lived with a state-by-state patchwork on the matter of interracial marriage. It is also claimed that the "public-policy exception" has allowed for different definitions of marriage from state to state. But these claims are misleading.
As I showed some years ago in "The Right Balance," this country has never truly experienced a situation in which a substantial number of marriages were valid in only some states. Despite legal technicalities that may permit a state-by-state hodgepodge, in practical terms, states virtually never refuse to recognize marriages performed in other states. The reason is that, although technically permissible, a refusal of recognition would create an intolerable rift within the body politic, and would force intolerable injustices on individuals. What our history (from the Utah question, to the miscegenation issue, to the "public-policy exception") actually proves is that, even when legal technicalities might theoretically permit a patchwork definition of marriage, marriage continually shows itself to require national uniformity.
Yet even this does not fully describe what's at stake. In Tocqueville's terms, this is an issue of public mores. And on the most fundamental questions, public mores in the United States are shaped at the national level. The meaning of marriage is determined by thousands of cultural messages, sent through a vast array of modern media. The lion's share of those media is national in scope. Once we have gay marriage in even a few states, the news and entertainment industries will seize on those states to magnify and spread the new meaning of marriage across the entire country. There is simply no way, in the modern age, to confine the fundamental cultural meaning of marriage within the borders of one or a few states.
My work on Scandinavia turns on the shared cultural understanding of what marriage means. The cultural separation of marriage from parenthood in Scandinavia gave rise to, and was reinforced by, the advent of same-sex registered partnerships. Gay marriage in a few liberal states here especially states that are home to national media would effectively widen the cultural separation of marriage from parenthood throughout the entire country. Just as the Scandinavian system has spread to England, and from England to formerly conservative Ireland, the new system of mores will spread from state to state in America. Once the big states adopt gay marriage, the cultural effect will be national in its reach.
This is not a question of degree of relatively high or low taxation, for example. This is a question of a fundamental pillar of our culture. We've already seen, with the spread of copycat civil disobedience across the states, how quickly cultural movements are nationalized. Our differences on gay marriage will not rest or resolve until the issue has been decided nationally.
But the most important point to recall is that, rightly understood, the basic definition of marriage the issue of its intrinsic connection to the potential for a man and a woman to create and nurture life has never been governed by the states. This has always transcended state regulation; has always existed in a realm outside of politics. It always had to: It was the foundation upon which the American political system rested in the first place.
Yet now, in a truly unprecedented way, the marriage issue has been forced into the political sphere, and the state-by-state Hatch amendment does nothing to solve the problem. The definition of marriage is the United States is, was, and always will be national. The only question remaining is, What will the definition be?