A Separate Peace

The way to end culture wars is to slug them out state by state.

By Jonathan Rauch
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From the archives:

"The Holy Cow! Candidate" (September 2005)
Mitt Romney is the Next Big Thing in the Republican Party. But can anyone so clean-cut, so pure of character, and (by gosh!) so square overcome the "two Ms"—Mormonism and Massachusetts—to be our next president? By Sridhar Pappu

Mitt Romney, the former governor of Massachusetts and a 2008 Republican presidential candidate, is a thoughtful politician, for a politician. So it was not surprising to find him recently debating one of the country’s core conundrums. It was a little surprising, though, to find him debating himself.

Romney believes abortion is wrong, but he thinks the decision on whether to allow it should be left to the states. In February, National Journal asked him if he favored a constitutional amendment banning abortion. No, he replied:

What I’ve indicated is that I am pro-life and that my hope is that the Supreme Court will give to the states … their own ability to make their own decisions with regard to their own abortion law … My view is not to impose a single federal rule on the entire nation, a one-size fits all approach, but instead allow states to make their own decisions in this regard.
From the archives:

"A More Perfect Union" (September 2005)
How the Founding Fathers would have handled gay marriage. By Jonathan Rauch

Romney also believes gay marriage is wrong, but he thinks the decision on whether to allow it should not be left to the states. Last year, he poured scorn on Senator John McCain, who (like Romney) opposes gay marriage, but who (unlike Romney) opposes a U.S. constitutional amendment banning it. “Look,” Romney said, “if somebody says they’re in favor of gay marriage, I respect that view. If someone says—like I do—that I oppose same-sex marriage, I respect that view. But those who try and pretend to have it both ways, I find it to be disingenuous.”

Taking the two quotations side by side, one could be excused for supposing Romney was trying to have it both ways. However, in fairness to him, now is not the first time Republicans have argued with themselves over moral federalism—or, what may be a better term, moral pluralism: leaving states free to go their separate ways when a national moral consensus is lacking.

In 1973, when the Supreme Court (in Roe v. Wade) declared abortion to be a constitutional right, conservatives were outraged. But what to do? Republicans were divided. Abortion opponents wanted the practice banned by a constitutional amendment, and supporters of Ronald Reagan soon took up the cause. Reagan, of course, was preparing a conservative primary challenge to the politically vulnerable and ideologically moderate Republican president, Gerald Ford—and Ford was in a bind, because his wife, Betty, had already endorsed Roe (“a great, great decision”).

Ford’s response was also to call for a constitutional amendment—but one that would return authority over abortion to the states, not impose a federal ban. In the end, Ford won the presidential nomination but lost the struggle within his party: The 1976 Republican platform called for “enactment of a constitutional amendment to restore protection of the right to life for unborn children.”

The more things change, the more they stay the same: In this decade, Vice President Cheney—a Ford administration alumnus, as it happens—has called for the gay-marriage issue to be left to the states. But his party’s cultural right has insisted on a national ban: not one gay marriage on U.S. soil! When President Bush sided with the right, he effectively cast the deciding vote, and moral pluralism lost.

Who was right, Cheney or Bush? Ford or Reagan? Romney or Romney? A priori, the answer isn’t obvious, but the country has recently run, in effect, a laboratory experiment. On abortion, it went with a uniform national rule. On gay marriage, it has gone the other way.

Abortion started in the state legislatures, where it was sometimes contentious but hardly the stuff of a nationwide culture war. Neither party’s national political platform had an abortion plank until 1976. In the late 1960s and early 1970s, some liberal-minded states began easing restrictive abortion laws. When the Supreme Court nationalized the issue, in 1973, it short-circuited a debate that was only just getting started.

By doing that, it moved abortion out of the realm of normal politics, which cuts deals and develops consensus, and into the realm of protest politics, which rejects compromise and fosters radicalism. Outraged abortion opponents mobilized; alarmed abortion-rights advocates countermobilized; the political parties migrated to extreme positions and entrenched themselves there; the Supreme Court became a punching bag; and abortion became an indigestible mass in the pit of the country’s political stomach.

Gay marriage started out looking similarly intractable and inflammable. As with abortion, a few liberal states began breaking with tradition, thereby initiating a broader moral debate; and, as with abortion, purists on both extremes denounced the middle as unsustainable or intolerable, saying that gay marriage (like abortion) must be illegal (or legal) everywhere in order to be effectively illegal (or legal) anywhere. The purists got help when two important actors preemptively rejected compromise. The Massachusetts Supreme Judicial Court ordered same-sex marriage in 2003, and then refused even to consider civil unions. That decision provoked President Bush’s equally provocative endorsement of a constitutional ban on gay marriage. The battle lines appeared to have been drawn for a national culture war, waged by extremes of left and right over the heads of a marginalized center.

But the political system, and the public, refused to be hustled. Congress rejected a federal constitutional ban. The federal courts stayed out of the argument (and Bush’s appointment of two conservative Supreme Court justices who look favorably on states’ rights probably ensures that the Court will keep its distance). With the federal government standing aside, the states got busy. All but a handful passed bans on gay marriage. Several adopted civil unions instead of gay marriage. One, Massachusetts, is tussling over efforts to revoke gay marriage.

The result is a diversity of practice that mirrors the diversity of opinion. And gay marriage, not incidentally, is moving out of the realm of protest politics and into the realm of normal politics; in the 2006 elections, the issue was distinctly less inflammatory than two years earlier. It is also moving out of the courts. According to Carrie Evans, the state legislative director of the Human Rights Campaign (a gay-rights organization), most gay-marriage litigation has already passed through the judicial pipeline; only four states have cases under way, and few other plausible venues remain. “It’s all going to shift to the state legislatures,” she says. “The state and national groups will have to go there.”

Barring the unexpected, then, same-sex marriage began in the courts and will wind up in the state legislatures and on state ballots: the abortion tape run backward. The issue will remain controversial, producing its share of flare-ups and fireworks; but it will become more tractable over time, as the country works its way toward a consensus. As a political issue, gay marriage will be around for years, but as a catalyst for culture war, it has already peaked.

Although I bow to no one in my support for gay marriage—society needs more marriages, not fewer, and gay couples need the protections and obligations of marriage, and gay individuals need the hope and promise of marriage—the last few years have provided a potent demonstration of the power of moral pluralism to act as a political shock absorber. Even moral absolutists—people who believe gay marriage is a basic human right or, for that matter, people who believe abortion is murder—should grudgingly support pluralism, because it makes the world safe for their moral activism by keeping the cultural peace. Someone should tell Mitt Romney. Maybe Mitt Romney could tell him.

This article available online at:

http://www.theatlantic.com/magazine/archive/2007/04/a-separate-peace/305679/