NOTE: This post appeared in an earlier form on my own weblog. I’m submitting it to SEB as a guest post because I think the issues it addresses deserve attention and consideration from a larger audience—especially among thinking members of the political left—than my lowly blog can provide. I’d like to thank Rick Brady, whose comments to my original post helped me find its soft spots.

Rick Brady at Stones Cry Out has recently hit on a topic¹ that I’ve been discussing amongst family and friends: the use of a states’ rights approach as a way to end the divisive national debate over gay marriage. Under such a philosophy of government—known as federalism—the states would each be permitted to make their own laws about moral issues such as gay marriage, and the federal government would stay out of it. By removing a few of the seemingly intractable wedge issues from the national discussion, we may be able to alleviate some of the partisan rancor that has plagued our country and focus on other important issues that are less emotional.

An American Tradition

Before diving into the possible pros and cons of federalism, it should be noted that federalism is the constitutionally-established governing philosophy of the United States. The Tenth Amendment clearly gives the states a great deal of leeway in how they conduct their internal affairs. It really could not have been done any other way. The original thirteen colonies were largely self-governing entities. Having just won their freedom from the British monarchy near the time when the Constitution was drafted, the colonies weren’t eager to surrender most of their autonomy to another powerful central government. Over the years, the federalist model has fallen out of favor in the U.S., and this country has begun to function more like a unitary state.

A Recipe for More Division?

In his post, Rick highlights the concern that a return to federalist principals will only make matters worse by leading to mass-relocations by both liberals and social conservatives to states with laws that are friendlier to their philosophies. The possibility for even greater division is a valid concern, but one that I believe could be overcome by state-level efforts to be competitive on other terms.

For example, to offset the effects of federalism-induced migration states could offer attractive tax incentives for businesses, encouraging them to locate there and thus boosting the state economy. They could entice families with an excellent public school system, or draw young adults with an inexpensive, high-quality state university system. The one-two punch of a quality university system and a strong state economy with steady hiring would be particularly effective.

By allowing every state to pass its own laws consistent with regional moral standards, former wedge issues may well vanish into the background for most people. Let’s face it: only about 10% of the population is gay. If you’re straight, are you going to pass up a good-paying job in Alabama (which, hypothetically, has low in-state tuition costs for your college-bound daughter) just because gay people can’t get married there? It doesn’t effect you—the hypothetical straight person—so probably not. With about 90% of the population left to attract through other means, the “red” states wouldn’t be at that much risk of losing a healthy liberal and moderate population.

The Chaotic Potential of Federalism: A Constitutional Solution

Rick seems worried that a return to federalism in the U.S. might cause some states to move to extremes of the political spectrum—passing laws that permit prostitution, legalize drugs, or establish a state-sponsored religion. In addition to creating an even more polarized national environment, this would produce a chaotic interstate legal environment.

I understand Rick’s concerns here as well, but feel that they’re unwarranted. One major reason that “pure federalism,” as he calls it, wouldn’t work in this country is that the Constitution explicitly disallows it through the combined effects of the Supremacy Clause of Article VI—establishing the primacy of the Constitution and federal law over state and local law—and the Equal Protection clause of the Fourteenth Amendment, which states in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; …nor deny to any person within its [the State’s] jurisdiction the equal protection of the laws.

I’m not a lawyer, but it’s my understanding that the Supremacy and Equal Protection clauses—as traditionally interpreted within the dominant paradigm of cooperative federalism—are the reason that the Supreme Court can strike down state laws and parts of state constitutions. These two constitutional protections strictly limit the scope of federalism. For example, Rick raises the specter of a state-established religion as one argument against federalism. This would be an impossibility, however, since any state-sponsored religion would violate citizens’ First Amendment right to religious freedom. In this way, the Supremacy and Equal Protection clauses offer built-in constitutional protection against the kind of “Faustian bargain” that Rick warns federalism might become.

There’s a way out of the legal chaos problem, too. In the event that the exercise of states’ rights got so out of hand as to make a scrambled mess of interstate legal operations, the federal government would be well within its rights to pass laws directed at ironing the situation out. This is permitted by the Commerce Clause of the Constitution, which gives Congress the power to regulate interstate commerce.

Yes, We Need a Marriage Amendment

Rick pointed out to me in a comment on my original post that interpretation I’ve described of the Supremacy and Equal Protection clauses would ultimately lead to the overturning of the Defense of Marriage Act. It would be found unconstitutional due to violation of the Equal Protection Clause and possibly the Full Faith and Credit Clause, which stipulates that contracts made in one state be held valid in all states². With DOMA overturned, the whole point of this exercise—state choice on the matter of gay marriage—is lost. For this reason, I support a marriage amendment to the Constitution, just not one like the Bush administration has suggested.

I propose a marriage amendment that integrates the DOMA’s stipulations about the acknowledgement of same-sex marriages and civil unions into the constitution as an explicit exception to the Full Faith and Credit Clause. I would not support an amendment that included the DOMA definition of marriage as between a man and a woman, since I believe that is up to the people of the states or their elected representatives to decide. Passage of such an amendment would pave the way for federalist principles to govern gay marriage in America and would preserve the spirit of the DOMA. I imagine it would also face more favorable odds of passage and ratification than the marriage amendment proposed by the Bush administration.

Federalism at Work Today

Precedents exist for the successful use of federalist principles to resolve divisive or sensitive cultural issues. Obscenity, for example, has been defined based on community standards rather than national standards ever since the 1973 Miller v. California Supreme Court decision.

Medical marijuana has also benefited from a states’ rights approach—eleven states have passed laws allowing for medicinal use of the drug, with Montana becoming the most recent of the bunch last Tuesday. The federal government’s attempts to stamp out such laws have been unsuccessful, in large part because the state laws smartly invoke the Commerce Clause of the Constitution by stipulating that the pot be grown, sold, and used only within the state. Since the federal government is only empowered by the Constitution to regulate interstate commerce, the medical marijuana laws have fared well in court challenges thus far.

Other examples of federalism already at work include Oregon’s newly-embattled “Death with Dignity Act” permitting physician-assisted suicide, concealed carry laws in several states that allow residents to pack concealed firearms for self-defense, legal prostitution in Nevada, and the end of the national 55 mph speed limit that existed from 1973 to 1995. Many of these issues still crop up in the media from time to time as minor controversies, but nothing on the scale of the current gay marriage debate.

Yea or Nay? The Right’s Federalism Flip-Flop

I find it both telling and frustrating that conservative politicians have consistently come out in favor of states’ rights—when it’s in the best interests of their agenda. On issues such as school prayer and gun rights, the right has consistently favored letting the states set their own policies. When it comes to gay marriage, civil unions, or medical marijuana, however, their take on federalism is quite different.

I realize that conservatives could rightly argue that this accusation cuts both ways. The time has come for both parties to put aside the notion of federalism as a political expedient and to weigh its merit as a real governing philosophy for this nation. Carefully applied within its prescribed constitutional limits, federalism could offer a remedy for America’s deep partisan divides. It might just be an idea whose time has come again.