Gay Rights and Federalism
An improbable marriage.

By Hadley Arkes, a professor of American Institutions at Amherst College & an adviser to the Alliance for Marriage
August 6, 2001 8:35 a.m.

onathan Rauch, ever thoughtful, ever artful, has displayed the art of the illusionist as he has shaped an argument against the Federal Marriage Amendment, proposed by the Alliance for Marriage ["Leave Gay Marriage to the States," Wall Street Journal, and now in his response to Stanley Kurtz, on National Review Online, on August 2] With a certain bravado he has warned of the constitutional vice of shifting questions of marriage and family law from the traditional jurisdiction of the States and bringing them under the imperium of federal law. But by casting the problem in that way, he deftly draws attention away from the fact that the political strategy of his friends, the gay activists, depends thoroughly on the design of removing these legal issues to the forum of the federal courts. The law in Virginia once barred marriages across racial lines, and when the Supreme Court struck down that law in 1967, was that not a move to trump the local law on marriage with the law of the federal Constitution? And did we not find the same federal overriding of family law when the Court struck down a scheme of assigning children on the basis of color in dealing with divorce, and settling custody, in mixed racial marriages? If we take Jonathan Rauch at his word, he evidently thinks that the refusal of the states to encompass "same-sex" marriage represents a species of wrongful discrimination — on the same moral and legal plane as discriminations based on race. Would we not have to believe then that Mr. Rauch would of course support this move to challenge these laws in the federal courts, in the way that the laws on miscegenation had been challenged in the past? And if the courts gave him the result he regards as just, would that not amount to a federal revision of the laws on marriage — as surely as any change brought about in a constitutional amendment?

In Vermont, the legislature has provided an arrangement of "civil unions" for couples of the same sex. But from Vermont has come the news that most of the couples arranging those unions have come from outside the state. By the middle of July, there had been 2,258 "civil unions," and of them, 1,795, or about 80 percent, involved people outside Vermont. The intention should be quite transparent: Since these unions are not recognized in their home states, these couples evidently intend to go into a federal court and invoke the Full Faith and Credit Clause of the Constitution [Art. IV, Sec. 1]. That clause leads us to presume that the marriage performed in Kentucky will be honored in Massachusetts. But activists are counting on that clause now as an engine for "federalizing" marriage — for extending same-sex marriage through the whole federal system as soon as it is installed in one state. As Mr. Rauch points out, the Defense of Marriage Act of 1996 sought to shore up the authority of the states to enter moral objections to certain kinds of marital unions (e.g., the incestuous) and refuse then to honor anything other than the marriage of a man and a woman. But Mr. Rauch clearly knows that when a state refuses to honor a "same-sex" marriage, the activists are preparing to challenge that decision in a federal court and invoke other parts of the Constitution (most likely, the Fourteenth Amendment and "the equal protection of the laws').

Rauch also curiously omits any mention of Romer v. Evans in 1996, even though the activists are surely counting on that case to undermine the traditional authority of the states to withhold their recognition of same-sex marriage. In that case, the Supreme Court struck down the attempt by voters, in a referendum, to withhold from local governments the authority to pass laws that barred discriminations based on sexual orientation. In striking down that referendum, the Court suggested that the opposition to gay rights reflected an irrational "animus." The lesson arising from that case was that it was no longer legitimate for a state to incorporate in its laws any understanding that homosexuality stood on a lesser plane of legitimacy than that sexuality "imprinted in our natures." And if that sentiment carries over, the courts may deny to the states the authority to hold back, on moral grounds, from recognizing gay marriage.

Mr. Rauch ought to say then, with that other wizard, "pay no attention to the man behind the curtain" — the one who is depending on a strategy of invoking the federal Constitution to override the laws in the states, even while he warns gravely about the wrongness of making marriage the business of the federal Constitution. Could it be, though, that he is falling back on that older trick-of-the eye?: That somehow we never seem to think that the federal courts are part of the federal government? It is only with an odd assumption of that kind that we hear people persistently say that the federal government should have nothing to do with abortion — while the federal courts must be free of course to address the issue of abortion in all of its dimensions.

But this trick of the eye works in another way for Jonathan Rauch: He says that we should "[let] the States go their separate ways," and that "same sex marriage could be tried in a few places where people feel comfortable with it." And yet, he neatly avoids ruling out the possibility that the states will go their separate ways, not because the voters will support same-sex marriage, but because the scheme is imposed by the courts, as it was in Vermont. 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." [My italics.] Rauch probably knows that our proposed amendment has been criticized by some conservatives precisely because it leaves open the possibility that legislatures will grant legal recognition to partners of the same sex. Our hope is that, when people and legislators absorb the principle behind the amendment, they would not seek to offer, in that way, a counterfeit of marriage. We would oppose those devices to offer marriage under another name, but we would be prepared to debate the matter state-by-state, for a critical authority would indeed remain in the separate states to legislate on this issue in many ways.

The hard fact of the matter is that both sides find it necessary to make an appeal to the Constitution. As long as the Full Faith and Credit Clause remains in the Constitution, along with the clauses on Equal Protection and Privileges and Immunities, the Constitution itself will act as an engine to "federalize" the issue of marriage by bringing the matter into the federal courts. The difference between the two sides is that Mr. Rauch's friends intend to accomplish that move covertly. With a concert of 12-15 federal judges, they may simply impose their policy. On our side, we would seek a wider deliberation, among the American people and their representatives, before a policy on marriage is installed. The point has been argued in the past that we did not strictly need constitutional amendments to do away with slavery, establish citizenship for the former slaves, and confer upon them the right to vote. But an earlier generation passed the 13th, 14th, and 15th amendments for the sake of taking these matters out of the hands of the judges who had given us the ruling in the Dred Scott case, and denied that blacks could claim any of these rights. And by securing those rights as part of the fundamental law, the Republican leaders sought to place those rights beyond the play of majorities shifting with the political seasons. In the current crisis, we have been compelled to take the same route in order to prevent a coup by judges at the state and federal level.

Many of those judges have shown a breathtaking willingness to assume for themselves the power to remodel the very matrix of our laws on the beginning and ending of life, on marriage and the family and the meaning of sexuality itself.

Our position has been that on matters that would remake the foundations of our laws, the decisions ought to made in the way that the Constitution itself maps out the plan for altering the fundamental law. By that plan, the "marriage amendment" could not succeed unless it draws a wide support among the people and their legislatures, and before it could do that it would have to set off an argument that ripples through the entire country.

That is the part of federalism that Jonathan Rauch has cagily held back from embracing, even as he offered a heartfelt plea for federalism. He has added to the debate a new twist of subtlety with his offer to shape the Defense of Marriage Act as a constitutional amendment. In that way, the federal judges would be barred from imposing same-sex marriage, and the matter would seem to be left to the states. But once again, the art of the illusionist has worked to conceal the decisive things that Mr. Rauch has left unacknowledged, and mainly concealed. It is worth taking account of them here:

— He no longer suggests that it is the product of an overheated imagination to seek a constitutional amendment on this issue. He implicitly concedes that an amendment is plausible, and that is precisely because the gay activists are gearing up at all levels to bring this issue into federal courts. And, very critically, he does nothing to disown those moves. They may not be his own choice, but he will not rule them out in principle. Therefore, with his reticence on this point, he confirms precisely the danger that has been cited by the Alliance for Marriage as the reason that brings forth this proposal for a constitutional amendment.

— Rauch has still left open the possibility that the decision in the states will not be made by the people or their representatives, but by judges, who now find, in their own constitutions, a principle of equality that majestically sweeps aside any denial of same-sex marriage. His proposal blocks out the federal judges, but still leaves the possibility of a coup staged by the local judges. What he might do is take one more step: He 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. But with that step, he would have backed into our own position: for he would now accept a process in which this matter will be argued out in the political arena and not settled in the chambers of judges.

Would it be indecorous to point out to Jonathan Rauch that we have reached this point of shadowboxing over a constitutional amendment precisely because of the games that his friends have been playing in the courts — with the same feints reflected in his own pieces. We will leave to another time the account of why marriage simply could not preserve its coherence and durability if the notion of marriage were stretched out of shape to encompass same-sex marriage. We have already seen the claims emerging for polyamorous groups, whose loves are not confined to couples. and indeed, once we admit gay marriage, we would not stand on any principled ground for confining marriage to two people — or fending off the claims for all of the exotic ensembles of people who insist that their love, too, ought to recognized in a marriage.

I have had an esteem for Jonathan Rauch as a person and a writer, but I fear that he has been undone by his own cleverness. By design, he used his opening line in the Wall Street Journal to denounce the "disingenuous" — and then went on to make of the disingenuous a high art. But by engaging the issue seriously, in a public discourse, he might have wrought even better than he knew, for he has now confirmed precisely our sense of the way in which this issue ought to be played out under the Constitution.