Bench Memos

Re: Marriage & the States

Since the White House is taking its time putting forward additional judicial nominees, I thought I’d take the time to reply to Ed’s response to my comments so as to clarify where we disagree.  Taking his points in order:

1. That Congress imposed conditions on new states does not establish that marriage has not traditionally been the province of the states.  To the contrary, Congress has not sought to override the decisions of individual states.  Why is this relevant? Because the traditional division of responsibilities between Congress and the states is entitled to substantial deference and should only be altered in the most extreme circumstances.

2. The fact that education has traditionally been a state matter should create a strong presumption against federal interference in education — even when done through constitutional means (e.g. the spending power, as in “No Child Left Behind”).  Ed maintains that “the proposition that something important has traditionally been a state matter generally means little more than that states have been thought to have acted, within broad bounds, responsibly on the subject.”  I disagree.  Many matters are left to the states where they have failed to adopt responsible policies, but that does not transform these matters into federal questions.  One purpose of the federalist structure is to minimize the cost of mistakes, which confining certain questions to the states does.

3. Article V does not create a “federal nexus.”  If it did, then all matters are, by definition, federal matters.

4. That the country has an interest in a given state of affairs does not, in itself, create a “federal interest.”  That is why we have a federal government of limited and enumerated powers.  It is also why even when the federal government acts within its constitutional authority, it should be careful not to encroach on traditional divisions between state and federal authority.

I certainly concede a federal interest in ensuring that state policy decisions on the acceptability of gay marriage are not effectively overridden by other states or by the courts.  One state should not be able to impose or externalize the costs of its policy preference on another.  This is the case for the Defense of Marriage Act, as well as for the “Constitutional DOMA ” proposed by Michael Greve.  But I don’t think the mere fact that some states may make terribly wrong decisions about a given matter of social policy justifies a federal response, let alone a constitutional revision.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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