TCS Daily

Fumbling Federalism

By Pejman Yousefzadeh - March 3, 2004 12:00 AM

Whatever one's view of the propriety of same-sex marriages, the Bush Administration has not helped in resolving this issue by proposing a Federal Marriage Amendment that would prohibit same-sex marriages across the country. The proposition of such an amendment is an unnecessary step backwards in the dialogue over the future of marriage.

In 1996, via huge majorities in both chambers of Congress, the Defense of Marriage Act (DOMA) was passed and signed into law by President Clinton. DOMA was prompted by concern regarding the possible effects of Art. IV, sec. 1 of the Constitution, which states the following:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

DOMA's drafters worried that if same-sex marriage were made valid in one state, it would have to be honored by all states pursuant to the Full Faith and Credit clause. Thus, DOMA is written so as to allow states the option to refuse to honor a same-sex marriage performed in another state that allows such marriages.

Many legal scholars believe that DOMA will be ruled unconstitutional if a suit is brought. That, along with activism on the part of the Massachusetts Supreme Court and city officials in San Francisco, prompted President Bush to make his announcement backing a Federal Marriage Amendment restricting the definition of marriage to the union of one man and one woman.

But no one has challenged DOMA in the nearly eight years since it became law, and 38 states thus far have laws on the books making same-sex marriage illegal. At the time of this writing, not a single state has legalized same-sex marriages. It is, therefore, not unreasonable to wonder why the Bush Administration appears to be in such a rush not only to defend DOMA, but also to impose a Federal Marriage Amendment that would prohibit same-sex marriages throughout the country.

Perhaps an argument can be made that the Administration needs to act before events overtake it. Fine. But even then, a second question emerges: Why does the Administration feel the need to supersede the language of DOMA itself with such an amendment?

Remember: DOMA merely says that a state does not have to recognize the validity of same-sex marriages that may be valid in another state. It does not itself outlaw same-sex marriage. Even if DOMA is unconstitutional, and even assuming that a constitutional amendment on the issue of marriage is needed, there is no reason why the Administration can't simply take, say, Michael Horowitz's advice and constitutionalize the effects of DOMA with the following amendment:

Except for distinctions based on race, color or religion, the establishment of civil marriage in all of its forms, and the benefits thereof, shall in each state be solely defined by the legislature or citizens thereof, and shall have such legal force in the remaining states as the legislatures or citizens of such states shall determine.

Such language would allow states to make the ultimate decision regarding the legalization of gay marriage, thus preserving the principles of federalism. Moreover, proponents of same-sex marriage may accept such an amendment as an honorable compromise. Blogger and same-sex marriage advocate Andrew Sullivan, for instance, has said that he is willing, should the need arise, to accept a constitutionalization of DOMA.

But instead, the Administration decided to ditch federalism, and mandate a Washington-crafted arrangement. In 2000, both George W. Bush and Dick Cheney said that the issue should be left up to the states to resolve, thus respecting the mandates and traditions of federalism. Now, with regard to same-sex marriage, federalism has become a sacrificial lamb as far as the Bush Administration is concerned.

The President may have feared that if he didn't take such a stand, his conservative base would be disillusioned, and would fail to turnout in the November election. But much of the reason the Bush Administration had to sign on to a movement to enact a constitutional amendment banning same-sex marriages across the country is that it has let down its base on many other issues of greater importance.

The Bush Administration has allowed non-defense and non-Homeland security related discretionary spending to skyrocket. The imposition of both steel and lumber tariffs represented a betrayal of free trade principles held dear by conservatives and libertarians. While the Democrats would be worse on both spending and trade matters, that should not excuse the Administration's failures on this issue. The Bush Administration backed a bloated and wasteful farm bill, abandoned the effort to enact school choice in the crafting of the No Child Left Behind Act, failed to push harder for the confirmation of its judicial candidates and refused until this year to use recess appointments to circumvent Senate filibusters on their candidacies, and neglected -- again, until this year -- the issues of partial Social Security privatization and tort reform.

Perhaps if most -- or even some -- of these issues were given attention, the Administration might have satisfied its base, and may have had sufficient credibility with social conservatives to tell them to back off on the issue of same-sex marriage so that the Bush-Cheney re-election team would be able to appeal to the political center more in the upcoming election. Instead, by letting down conservatives and libertarians on these issues, the Administration backed itself into a corner where it had to demonstrate its value to a portion of its base in any way possible. That way turned out to be backing a constitutional amendment outlawing same-sex marriage. Such a stance may satisfy social conservatives, but if the Administration demonstrated fealty instead to the other conservative/libertarian issues outlined above, it would still have made its base happy, while reaching out to centrist voters attracted by the ideas of fiscal austerity, school choice, entitlement reform, anti-pork policies and trade. Moreover, the Administration would not have had to ditch a conservative/libertarian principle like federalism in the process.

The Administration's proposal represents a gigantic overreaction to circumstances that have not yet taken place. It also violates the principles of federalism that would leave policymaking regarding this matter to the states -- betraying the position taken by candidates Bush and Cheney in the 2000 presidential election. Even if a constitutional amendment on the issue of marriage were needed, the proposed Federal Marriage Amendment would likely go far beyond what is necessary to be mandated by such an amendment. And this problem could have been avoided if the Administration had delivered on other issues near and dear to the hearts of conservative and libertarians. We don't yet know what will be the ultimate fate of marriage in America. But it is clear that federalism deserved better than what it got at the hands of the Bush Administration on the issue of same-sex marriage.

The author recently wrote for TCS about Me Too Republicanism.


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