A More Perfect Union
How the Founding Fathers would have handled gay marriageby Jonathan Rauch
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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.
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.
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.
Why, then, do the states all recognize one another's marriages? Because they choose to. Before the gay-marriage controversy arose, the country enjoyed a general consensus on the terms of marriage. Interstate differences were so small that states saw no need to split hairs, and mutual recognition was a big convenience. The issue of gay marriage, of course, changes the picture, by asking states to reconsider an accepted boundary of marriage. This is just the sort of controversy in which the Founders imagined that individual states could and often should go their separate ways.
Paradoxically, the gay left and the antigay right have found themselves working together against the center. They agree on little else, but where marriage is concerned, they both want the federal government to take over.
To many gay people, anything less than nationwide recognition of same-sex marriage seems both unjust and impractical. "Wait a minute," a gay person might protest. "How is this supposed to work? I get married in Maryland (say), but every time I cross the border into Virginia during my morning commute, I'm single? Am I married or not? Portability is one of the things that make marriage different from civil union. If it isn't portable, it isn't really marriage; it's second-class citizenship. Obviously, as soon as same-sex marriage is approved in any one state, we're going to sue in federal court to have it recognized in all the others."
"Exactly!" a conservative might reply. "Gay activists have no intention of settling for marriage in just one or two states. They will keep suing until they find some activist federal judge—and there are plenty—who agrees with them. Public-policy exception and Defense of Marriage Act notwithstanding, the courts, not least the Supreme Court, do as they please, and lately they have signed on to the gay cultural agenda. Besides, deciding on a state-by-state basis is impractical; the gay activists are right about that. The sheer inconvenience of dealing with couples who went in and out of matrimony every time they crossed state lines would drive states to the lowest common denominator, and gay marriages would wind up being recognized everywhere."
Neither of the arguments I have just sketched is without merit. But both sides are asking the country to presume that the Founders were wrong and to foreclose the possibility that seems the most likely to succeed. Both sides want something life doesn't usually offer—a guarantee. Gay-marriage supporters want a guarantee of full legal equality, and gay-marriage opponents want a guarantee that same-sex marriage will never happen at all. I can't offer any guarantees. But I can offer some reassurance.
Is a state-by-state approach impractical and unsustainable? Possibly, but the time to deal with any problems is if and when they arise. Going in, there is no reason to expect any great difficulty. There are many precedents for state-by-state action. The country currently operates under a tangle of different state banking laws. As any banker will tell you, the lack of uniformity has made interstate banking more difficult. But we do have interstate banks. Bankers long ago got used to meeting different requirements in different states. Similarly, car manufacturers have had to deal with zero-emission rules in California and a few other states. Contract law, property law, and criminal law all vary significantly from state to state. Variety is the point of federalism. Uniform national policies may be convenient, but they risk sticking us with the same wrong approach everywhere.
My guess is that if one or two states allowed gay marriage, a confusing transitional period, while state courts and legislatures worked out what to do, would quickly lead in all but a few places to routines that everyone would soon take for granted. If New Jersey adopted gay marriage, for instance, New York would have a number of options. It might refuse to recognize the marriages. It might recognize them. It might honor only certain aspects of them—say, medical power of attorney, or inheritance and tenancy rights. A state with a civil-union or domestic-partner law might automatically confer that law's benefits on any gay couple who got married in New Jersey. My fairly confident expectation is that initially most states would reject out-of-state gay marriages (as, indeed, most states have pre-emptively done), but a handful would fully accept them, and others would choose an intermediate option.
For married gay couples, this variation would be a real nuisance. If my partner and I got married in Maryland, we would need to be aware of differences in marriage laws and make arrangements—medical power of attorney, a will, and so on—for whenever we were out of state. Pesky and, yes, unfair (or at least unequal). And outside Maryland the line between being married and not being married would be blurred. In Virginia, people who saw my wedding band would be unsure whether I was "really married" or just "Maryland married."
Even so, people in Virginia who learned that I was "Maryland married" would know I had made the strongest possible commitment in my home state, and thus in the eyes of my community and its law. They would know I had gone beyond cohabitation or even domestic partnership. As a Jew, I may not recognize the spiritual authority of a Catholic priest, but I do recognize and respect the special commitment he has made to his faith and his community. In much the same way, even out-of-state gay marriages would command a significant degree of respect.
If you are starving, one or two slices of bread may not be as good as a loaf—but it is far better than no bread at all. The damage that exclusion from marriage has done to gay lives and gay culture comes not just from being unable to marry right now and right here but from knowing the law forbids us ever to marry at all. The first time a state adopted same-sex marriage, gay life would change forever. The full benefits would come only when same-sex marriage was legal everywhere. But gay people's lives would improve with the first state's announcement that in this community, marriage is open to everyone.
Building consensus takes time. The nationwide imposition of same-sex marriage by a federal court might discredit both gay marriage and the courts, and the public rancor it unleashed might be at least as intense as that surrounding abortion. My confidence in the public's decency and in its unfailing, if sometimes slow-acting, commitment to liberal principles is robust. For me personally, the pace set by a state-by-state approach would be too slow. It would be far from ideal. But it would be something much more important than ideal: it would be right.
Would a state-by-state approach inevitably lead to a nationwide court mandate anyway? Many conservatives fear that the answer is yes, and they want a federal constitutional amendment to head off the courts—an amendment banning gay marriage nationwide. These days it is a fact of life that someone will sue over anything, that some court will hear any lawsuit, and that there is no telling what a court might do. Still, I think that conservatives' fears on this score are unfounded.
Remember, all precedent leaves marriage to the states. All precedent supports the public-policy exception. The Constitution gives Congress a voice in determining which of one another's laws states must recognize, and Congress has spoken clearly: the Defense of Marriage Act explicitly decrees that no state must recognize any other state's same-sex marriages. In order to mandate interstate recognition of gay marriages, a court would thus need to burn through three different firewalls—a tall order, even for an activist court. The current Supreme Court, moreover, has proved particularly fierce in resisting federal incursions into states' rights. We typically reserve constitutional prohibitions for imminent threats to liberty, justice, or popular sovereignty. If we are going to get into the business of constitutionally banning anything that someone imagines the Supreme Court might one day mandate, we will need a Constitution the size of the Manhattan phone book.
Social conservatives have lost one cultural battle after another in the past five decades: over divorce, abortion, pornography, gambling, school prayer, homosexuality. They have seen that every federal takeover of state and local powers comes with strings attached. They have learned all too well the power of centralization to marginalize moral dissenters—including religious ones. And yet they are willing to risk federal intervention in matrimony. Why?
Not, I suspect, because they fear gay marriage would fail. Rather, because they fear it would succeed.
One of the conservative arguments against gay marriage is particularly revealing: the contention that even if federal courts don't decide the matter on a national level, convenience will cause gay marriage to spread from state to state. As noted, I don't believe questions of convenience would force the issue either way. But let me make a deeper point here.
States recognized one another's divorce reforms in the 1960s and 1970s without giving the matter much thought (which was too bad). But the likelihood that they would recognize another state's same-sex marriages without serious debate is just about zero, especially at first: the issue is simply too controversial. As time went on, states without gay marriage might get used to the idea. They might begin to wave through other states' same-sex marriages as a convenience for all concerned. If that happened, however, it could only be because gay marriage had not turned out to be a disaster. It might even be because gay marriage was working pretty well. This would not be contagion. It would be evolution—a sensible response to a successful experiment. Try something here or there. If it works, let it spread. If it fails, let it fade.
The opponents of gay marriage want to prevent the experiment altogether. If you care about finding the best way forward for gay people and for society in a changing world, that posture is hard to justify. One rationale goes something like this: "Gay marriage is so certain to be a calamity that even the smallest trial anywhere should be banned." To me, that line of argument smacks more of hysteria than of rational thought. In the 1980s and early 1990s some liberals
were sure that reforming the welfare system to emphasize work would put millions of children out on the street. Even trying welfare reform, they said, was irresponsible. Fortunately, the states didn't listen. They experimented—responsibly. The results were positive enough to spark a successful national reform.
Another objection cites not certain catastrophe but insidious decay. A conservative once said to me, "Changes in complicated institutions like marriage take years to work their way through society. They are often subtle. Social scientists will argue until the cows come home about the positive and negative effects of gay marriage. So states might adopt it before they fully understood the harm it did."
Actually, you can usually tell pretty quickly what effects a major policy change is having—at least you can get a general idea. States knew quite soon that welfare reforms were working better than the old program. That's why the idea caught on. If same-sex marriage is going to cause problems, some of them should be apparent within a few years of its legalization.
And notice how the terms of the discussion have shifted. Now the anticipated problem is not sudden, catastrophic social harm but subtle, slow damage. Well, there might be subtle and slow social benefits, too. But more important, there would be one large and immediate benefit: the benefit for gay people of being able to get married. If we are going to exclude a segment of the population from arguably the most important of all civic institutions, we need to be certain that the group's participation would cause severe disruptions. If we are going to put the burden on gay people to prove that same-sex marriage would never cause even any minor difficulty, then we are assuming that any cost to heterosexuals, however small, outweighs every benefit to homosexuals, however large. That gay people's welfare counts should, of course, be obvious and inarguable; but to some it is not.
I expect same-sex marriage to have many subtle ramifications—many of them good not just for gay people but for marriage. Same-sex marriage would dramatically reaffirm the country's preference for marriage as the gold standard for committed relationships. Of course there might be harmful and neutral effects as well. I don't expect that social science would be able to sort them all out. But the fact that the world is complicated is the very reason to run the experiment. We can never know for sure what the effects of any public policy will be, so we conduct a limited experiment if possible, and then decide how to proceed on the basis of necessarily imperfect information.
If conservatives genuinely oppose same-sex marriage because they fear it would harm straight marriage, they should be willing to let states that want to try gay marriage do so. If, on the other hand, conservatives oppose same-sex marriage because they believe that it is immoral and wrong by definition, fine—but let them have the honesty to acknowledge that they are not fighting for the good of marriage so much as they are using marriage as a weapon in their fight against gays.
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