Last November the Supreme Judicial Court of Massachusetts ruled that excluding gay couples from civil marriage violated the state constitution. The court gave the legislature six months—until May—to do something about it. Some legislators mounted efforts to amend the state constitution to ban same-sex marriage, but as of this writing they have failed (and even if passed, a ban would not take effect until at least 2006). With unexpected urgency the country faces the possibility that marriage licenses might soon be issued to homosexual couples. To hear the opposing sides talk, a national culture war is unavoidable.
"The War on Marriage" (July 31, 2003)
A cartoon by Sage Stossel
But same-sex marriage neither must nor should be treated as an all-or-nothing national decision. Instead individual states should be left to try gay marriage if and when they choose—no national ban, no national mandate. Not only would a decentralized approach be in keeping with the country's most venerable legal traditions; it would also improve, in three ways, the odds of making same-sex marriage work for gay and straight Americans alike.
First, it would give the whole country a chance to learn. Nothing terrible—in fact, nothing even noticeable—seems to have happened to marriage since Vermont began allowing gay civil unions, in 2000. But civil unions are not marriages. The only way to find out what would happen if same-sex couples got marriage certificates is to let some of us do it. Turning marriage into a nationwide experiment might be rash, but trying it in a few states would provide test cases on a smaller scale. Would the divorce rate rise? Would the marriage rate fall? We should get some indications before long. Moreover, states are, as the saying goes, the laboratories of democracy. One state might opt for straightforward legalization. Another might add some special provisions (for instance, regarding child custody or adoption). A third might combine same-sex marriage with counseling or other assistance (not out of line with a growing movement to offer social-service support to so-called fragile families). Variety would help answer some important questions: Where would gay marriage work best? What kind of community support would it need? What would be the avoidable pitfalls? Either to forbid same-sex marriage nationwide or to legalize it nationwide would be to throw away a wealth of potential information.
Just as important is the social benefit of letting the states find their own way. Law is only part of what gives marriage its binding power; community support and social expectations are just as important. In a community that looked on same-sex marriage with bafflement or hostility, a gay couple's marriage certificate, while providing legal benefits, would confer no social support from the heterosexual majority. Both the couple and the community would be shortchanged. Letting states choose gay marriage wouldn't guarantee that everyone in the state recognized such marriages as legitimate, but it would pretty well ensure that gay married couples could find some communities in their state that did.
Finally, the political benefit of a state-by-state approach is not to be underestimated. This is the benefit of avoiding a national culture war.
"Blue Movie" (January/February 2003)
The "morality gap" is becoming the key variable in American politics. By Thomas Edsall
"One Nation, Slightly Divisible" (December 2001)
Do our differences effectively split us into two nations, or are they just cracks in a still-united whole? By David Brooks
The United States is not (thank goodness) a culturally homogeneous country. It consists of many distinct moral communities. On certain social issues, such as abortion and homosexuality, people don't agree and probably never will—and the signal political advantage of the federalist system is that they don't have to. Individuals and groups who find the values or laws of one state obnoxious have the right to live somewhere else.
The nationalization of abortion policy in the Supreme Court's 1973 Roe v. Wade decision created a textbook example of what can happen when this federalist principle is ignored. If the Supreme Court had not stepped in, abortion would today be legal in most states but not all; pro-lifers would have the comfort of knowing they could live in a state whose law was compatible with their views. Instead of endlessly confronting a cultural schism that affects every Supreme Court nomination, we would see occasional local flare-ups in state legislatures or courtrooms.
America is a stronger country for the moral diversity that federalism uniquely allows. Moral law and family law govern the most intimate and, often, the most controversial spheres of life. For the sake of domestic tranquillity, domestic law is best left to a level of government that is close to home.
So well suited is the federalist system to the gay-marriage issue that it might almost have been set up to handle it. In a new land whose citizens followed different religious traditions, it would have made no sense to centralize marriage or family law. And so marriage has been the domain of local law not just since the days of the Founders but since Colonial times, before the states were states. To my knowledge, the federal government has overruled the states on marriage only twice. The first time was when it required Utah to ban polygamy as a condition for joining the Union—and note that this ruling was issued before Utah became a state. The second time was in 1967, when the Supreme Court, in Loving v. Virginia, struck down sixteen states' bans on interracial marriage. Here the Court said not that marriage should be defined by the federal government but only that states could not define marriage in ways that violated core constitutional rights. On the one occasion when Congress directly addressed same-sex marriage, in the 1996 Defense of Marriage Act, it decreed that the federal government would not recognize same-sex marriages but took care not to impose that rule on the states.
Marriage laws (and, of course, divorce laws) continue to be established by the states. They differ on many points, from age of consent to who may marry whom. In Arizona, for example, first cousins are allowed to marry only if both are sixty-five or older or the couple can prove to a judge "that one of the cousins is unable to reproduce." (So much for the idea that marriage is about procreation.) Conventional wisdom notwithstanding, the Constitution does not require states to recognize one another's marriages. The Full Faith and Credit clause (Article IV, Section 1) does require states to honor one another's public acts and judgments. But in 1939 and again in 1988 the Supreme Court ruled that the clause does not compel a state "to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." Dale Carpenter, a law professor at the University of Minnesota, notes that the Full Faith and Credit clause "has never been interpreted to mean that every state must recognize every marriage performed in every other state." He writes, "Each state may refuse to recognize a marriage performed in another state if that marriage would violate the state's public policy." If Delaware, for example, decided to lower its age of consent to ten, no other state would be required to regard a ten-year-old as legally married. The public-policy exception, as it is called, is only common sense. If each state could legislate for all the rest, American-style federalism would be at an end.