Sleight of Hand
Gay marriage and federalism — again.

By Hadley Arkes, Ney Professor of Jurisprudence at Amherst College, and a fellow of the Ethics & Public Policy Center
August 14, 2001 10:30 a.m.

know that Jonathan Rauch would not take for himself the role of Slick Willie, or start offering us deals that hinge on what the meaning of the word "is" is. And yet, what would we make of his recent comeback in the exchange over gay marriage and federalism? I have charged him, in that exchange, with feigning a devotion to federalism while he would leave it in the power of activist judges in the states to impose gay marriage under the pretext of their own constitutions. At the same time, his friends have been busy litigating in federal courts to override the laws on marriage in the states. Rauch conceded that a constitutional amendment could be apt and warranted, and I invited him then to take an additional 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 when he took that step, I said, he would have backed into the text of the Federal Marriage Amendment.

Rauch affected to take me up on the invitation by making this counter-offer as an 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." To see the sleight of hand at work, one has to compare this formulation with the language already contained in the Marriage Amendment: "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." The amendment explicitly bars any officer of the law from construing the constitution of a state to require, and therefore, impose same-sex marriage. Rauch, with a trick of the eye, adopts part of the language, but he still leaves the judges free to decide that the local Constitution "permits" gay marriage. From there, it is a short step to the conclusion that the legislature must make it clear that the laws are indeed open to this possibility, by altering the traditional laws of marriage, which now preclude this wholesome novelty.

But why the sleight of hand? If Rauch truly accepted our argument that the decision ought to be left in the hands of the voters in the separate states, he could simply have accepted the language of the amendment. The only rationale for resisting that language was that in fact he refused to join us in barring the judges from changing the laws on their own. Yet, in that case, why would he feign to offer a compromise that pretends to meet our concerns, while not meeting them at all? The gesture requires an added measure of chutzpah when, in the same essay, he makes clear that he is indeed determined to do nothing to restrict the role of the judges here. As Rauch puts it:

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.

Jonathan Rauch is well versed in the Constitution, and he knows quite well that, under the Constitution, it has indeed been legitimate and necessary to put restraints on the power of judges. In the 1930's, liberals led the move to restrict the power of federal judges to intervene in disputes with unions, and make ready use of injunctions to break the backs of strikes. That legislation sprung from the power of Congress, under the Constitution, to alter the jurisdiction of the federal courts — and even determine whether there will be lower federal courts in the first place. If a state used devices to bar blacks from being selected as judges, Rauch knows that there would indeed be a move into federal court and a willingness to interfere with the authority of the state to arrange the selection of its own judges. If we think that there is a distinct danger right now of judges misusing their authority to reshape the very matrix of our laws on marriage and the family, there is nothing in the Constitution or the federal structure that bars us from dealing with that danger. We can deal with it while leaving quite unimpaired the authority of the states to determine the number of houses in their legislatures or whether their judges are elected or appointed.

Rauch raises the question of whether my own side is feigning: We profess our willingness to take our chances with the electorate, while at the same time we are seeking to establish, in the fundamental law, the essential meaning of marriage as the union only of a man and a woman.

We are not seeking local options, or the varieties of federalism, on that sovereign point. After all, when we speak of amending the Constitution, or fixing the terms of the fundamental law, the purpose is to secure something of substance, beyond the shifts and vagaries of local politics. But Rauch, with his criticism, misses a couple of critical points that run to the heart of things.

He curiously overlooks the fact that, in moving into the arena with a constitutional amendment, we are indeed taking our chances with the electorate. In order to succeed, we need to persuade two-thirds of the Congress and the people in three quarters of the states. Rauch's friends, in contrast, hope to accomplish their own ends by recruiting to their side about a dozen judges. Still, Rauch would charge us with being insincere friends of federalism because we would actually seek a policy of securing the substance of marriage. He would counsel to be neutral or detached on the things that are chosen in the separate states, and to affirm instead the importance of leaving the states free to make their own choices. That is an ancient lure, and by this time in the seasons of our experience, we should know what is wrong with it. Consider the form of the argument stated differently: "You think that it is wrong to burn widows on the funeral pyres of their husbands. We think it is a matter of private choice. Therefore, let us have a 'neutral' rule: If people think it wrong, let them refrain from doing it; but if they think it right, they should be free to honor their own judgments. Let us be, then, 'pro-choice.'"

But of course, there is nothing the least "neutral" in this arrangement. It merely installs the premises of one side, the side that insists that there is no moral right and wrong here that can override anyone's personal choice. When Jonathan Rauch asks us to join him in a neutral rule of federalism, he does not ask us merely to accept a set of procedures. He asks us to accept a policy that installs his own premises; an arrangement that virtually gives the victory to his side. To put it another way, his notion of federalism is that the states are free to decide, within a framework built upon the notion that no form of marriage is more rightful than another.

As Rauch knows, there is a continuing argument, even among conservative friends, as to whether the Amendment could do more to ban domestic partnerships and civil unions under various names. But the authority to devise those alternatives does not spring from anything in the Amendment. It finds its source in the legislative powers of the states themselves, and there may be no practicable way of removing that power to invent all kinds of new names for alliances that look like marriage. We have said, however, that we are willing to face that question, and make the argument, state-by-state, in defending marriage. What we are not willing to do is enter into a scheme of local options, or a false federalism, that begins from the premise that we leave the decision to the states because there is no truth to declare, no sense of right and wrong that finally commands our judgment. The Marriage Amendment contemplates an active politics in the states, but it begins with the proposition that "Marriage in the United States shall consist only of the union of a man and a woman." That is the central point of substance that we seek to plant in the law. That is the step that Jonathan Rauch is determined to resist, and no verbal formulas can finally cover over, or get around, that decisive point.

What Rauch seems to ignore is that a federal structure is the structure, nevertheless, of an integrated polity. As the Supreme Court itself suggested, the prospect of wives being burned on funeral pyres could not be permitted by the civil law even if it were taking place under the auspices or religion — or even if the practice were confined to one state. The Court made this argument in the course of explaining why the federal government was justified in repressing polygamy even though this novelty in the laws of marriage was confined to Utah. Somehow there seemed to be an awareness in the country that the effects of polygamy could not be confined in that way. Once it were admitted into the laws of the United states, the federal constitution would make it hard to cabin that practice in one or two states. Jonathan Rauch knows himself that, on anything he regards truly as a wrong, he would not waive his objection if the wrong were confined to one state. He would not find human sacrifice something he could tolerate if it took place only in New Jersey. And on the other side, if he thought he had a rightful freedom to enter into a marriage with another man, he would not think much of that franchise if he lost it when he crossed the border into another state. It is illusory to think that the gay activists would settle for that arrangement, even if Jonathan Rauch would. But if gay marriage is installed in any state, how could there not be seepage if we adopted Rauch's premise and said, "We are farming these decisions out to local choice precisely because there are no rightful and wrongful notions of marriage that deserve to be enforced in the laws." To accept a premise of that kind is not to firm up marriage in the states that hold back from adopting same-sex marriage. It is to plant, rather, the premises that would surely undermine the institution of marriage by eroding the convictions that sustain the idea of marriage as a distinct, intrinsic good. As Maggie Gallagher has remarked, it is not free love, but the marriage vow, that is daring. We are at the edge of a grave, flippant mistake if we discount how easy it may be to undercut conventions long established simply by switching from veneration to mild scoffing; by suggesting that the vow has become implausible because, in the end, no form of marriage is more rightful than another.