Oh, Not Federalism Again

[In the wake of the return (and almost sure defeat) of the insane Marriage Protection Amendment, we have another call for a federalist solution to the same-sex marriage issue (via Andrew Sullivan, who I've decided isn't malicious-conservative, just naive-utopian in a conservative idiom; the most honest thing he ever wrote was that he uses his blog as a way to hash out his evolving opinions). For those just tuning in, Jonathan Rauch (who makes this latest call), Sullivan, and many others favoring equal rights for the homos have suggested that the decision to recognize same-sex marriage be left to the individual states. (The MPA, obviously, is a federal solution, which would prohibit same-sex marriage throughout the Land of the Trapped and the Home of the Terrified.)]

[I've written about federalism before, but perhaps not in the context in which Rauch writes. First of all, I tend to smell a rat when conservatives call for a federalist solution to any issue. I tend to think that all factions have their policy goals, and on what level of government they're enacted only matters from the standpoint of political practicality: it's easier to get medical marijuana legalized state-by-state, so its advocates are for doing it that way. The long-term, incrementalist hope is that if California or whoever can show that pot as medicine works, the other states might one day be convinced to give it a try.]

[I pulled the medical marijuana issue out of my ass (Rauch doesn't mention it; there's a lot he skips), but it's consistent with that other great issue that may be left to the states again. Yes, of course I'm talking about abortion. No one at this point seriously argues that Roe v. Wade was a triumph of legal reasoning, but it's been the only thing keeping abortion legal nationwide since it was delivered in 1973. Since Congress lacks the political will to codify the not-bad trimester framework created out of thin air in Roe (it wouldn't take an amendment, just a law; see also medical marijuana), Roe's been it, an unashamedly outcome-based state of affairs that has led the brain-dead complaints about something called "judicial activism," my other favorite red-herring pet peeve. Where in the Constitution does it say that judges aren't political?]

[Rauch writes that abortion, like marriage, is too big an issue for a one-size-fits-all federal solution. I disagree with him for two reasons, one which applies more to marriage equality (and medical marijuana), and one which applies more to abortion. My first objection is practical/constitutional: while marriage was originally understood to be the business of the states, the Feds have stepped in rather a big way with regards to the benefits that accrue to marriage, so that while you may be married under the laws of California, many of the goodies come from Uncle Sam.]

[Rauch fails even to mention this common objection to leaving marriage equality to the states, while federally they remain unrecognized. Right now, those famously married Massachusetts same-sexers can't get the federal benefits that, as far as I read the Equal Protection clause, should be theirs. As soon as Congress takes an interest in an area of law, they take the lead from there. State marriage laws can't be unto themselves, nice and discreet and inviolable, as long as there's a federal component. (See also medical marijuana, as the Supreme Court has sensibly, if buzzkillingly, pointed out: the states, though their motives be pure, really have no business declaring a Schedule A prohibited substance okey-dokey.)]

[My second objection is, for lack of a better word, societal. Marriage equality fits here, too, but I think emphasizing the practical implications just mentioned will be where we will win on that issue, so...abortion. As far as I'm concerned, choice is a civil rights matter for women. Just as the only real reason to deny marriage equality is a bigoted bias against same-sex relationships, the basis for the "pro-life" movement is the belief that women's bodies need to be controlled by, quite literally, The Man. (Someone would say I just veered dangerously close speaking Lesbianese.) I thought we'd settled the question of whether civil rights should be left to the states in the 1960s, if not the 1860s. If you argue that issues like choice (and same-sex marriage) should be left to the states, why not interracial marriage? Segregation? Voting rights? Slavery? All of these issues are/were about oppression, and so are abortion and homo matrimony.]

[Y'know, the secessionists of 1860-'61 weren't just whistlin' Dixie when left the Union in a huff. The U.S. government has superseded the states in almost every way. I don't think it could've gone any other way in light of our phenomenal growth and the last century's geopolitics. And I'm glad of it, too, at least with regard to civil rights: in no way can we as a nation be better defined than by the way we protect those least able to protect themselves. It's why a bill of rights was added to the Constitution in the first place. Rather than seeing marriage (and abortion) as "so important...(that) it is the subject of such profound moral disagreement, that a one-size-fits-all federal solution is the wrong approach," I see them as so important that we can't leave them to the states and still call ourselves one nation with a single conception of civil rights, a conception that unites and aspires, not fifty that divide and look backward each in its own special way.]

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