Demise of states’ rights

December 11, 2004

Andrew Sullivan (Columnist), Union Leader

IF A STATE wanted to enact marriage rights for gay couples, the President’s Federal Marriage Amendment would forbid it. That’s true even if such marriages could not be recognized anywhere else in the country, as stipulated by the Defense of Marriage Act of 1996. So much for states’ rights.

The same is true with another nettlesome social issue: medical marijuana. The Supreme Court heard arguments last week about the right of some people with severe medical conditions to grow and use pot. It seemed clear enough from the often dismissive line of questioning that, under current law, the feds rule. Even if a person grows only enough pot to treat her own illness, even if nothing is bought or sold, even if she lives in a state where medical marijuana is legal, she can expect to feel the dank breath of the Drug Enforcement Administration on her neck every time she rolls a joint.

Remember when the Republicans believed that government worked best when it was closest to the people? Ah, but that was when the states wanted to pursue policies that the Republican Party agreed with. The Republicans, of course, aren’t the only ones to display a little opportunism in this department. It’s hilarious to hear Democrats suddenly championing states’ rights in the case of marriage equality, for example. But the federalist point remains.

The whole point of federalism is that different states can have different policies on matters of burning controversy — and that this is OK. The U.S. Constitution was devised not as a means to avoid social and cultural polarization, but as a way to manage it without splitting the country apart. And it says a huge amount about our contemporary amnesia with regard to the benefits of federalism that this should now be seen as some sort of revelation.

In this sense, cultural polarization is emphatically not a problem. It’s a sign of political health, a bellwether of a society that has not given up on debating first-principle issues of human morality. If you want to live in a society where nobody cares much anymore about when human life begins, whether homosexuality is moral or whether getting high is somehow a sin, then move to France.

There are, after all, many matters of deep moral and political import that are simply immune to simple political compromises. The death penalty, stem-cell research, abortion, gay rights: All these involve moral judgments that can — and should — elude political half-measures. And you can see why: If you believe that a fetus is a human being, how can you compromise on abortion? If you believe that homosexuality is morally equal to heterosexuality, how can you deny gay couples the same relationship rights? If you believe that all killing is wrong, how can you support capital punishment?

These are, indeed, non-negotiable issues. Which is where federalism provides an imperfect but pragmatic solution. Let Ohio prevent gay couples from having legal protections. But let California enact a sweeping civil-unions bill that brings gay couples very close to marriage rights. Not only do you give both sides something — finding a compromise where no compromise seemed possible — but you also get a chance to see how social experiments succeed or fail in practice.

There’s a lesson for liberals in this as well. Cool it on the courts. One of the biggest setbacks for abortion rights was the Roe v. Wade overreach. Abortion rights were gaining in state legislatures before these advances were jeopardized by the Supreme Court’s backlash-kindling intervention. If gay activists push too far too fast now to mandate marriage rights across the entire country, they may well get a federal constitutional ban that will destroy gay rights for generations. Federalism can work for both sides. The alternative is bipartisan hypocrisy that renders political debate as acrimonious as it is futile. In the United States, we can do better. And for two centuries, we often have.

Andrew Sullivan is a senior editor at The New Republic.

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