Federalism and gay marriage: Should states have a right to decide marriage equality?

Should States Have the Right to Decide on Gay Marriage?

Should States Have the Right to Decide on Gay Marriage?

Who's winning, who's losing, and why.
May 10 2012 6:57 PM

The Federalist Question

Should states have a right to decide gay marriage?

Same-sex couple marries in NYC.
Same-sex couple Dylan Stein (L) and Gabriel Blau embrace before their wedding ceremony at the Manhattan City Clerk's office on the first day New York State's Marriage Equality Act goes into effect July 24, 2011

Photograph by David Handschuh-Pool/Getty Images.

Slate’s William Saletan and Dahlia Lithwick joined readers on Facebook on Thursday to discuss the legal and political repercussions of Barack Obama’s gay-marriage endorsement. The following transcript of the discussion has been edited for length and clarity. To see the full conversation, click on this link.

Frank Piel: Will Obama’s endorsement matter? No. Everyone is focused on getting a job. “Can he get jobs?” is going to be the focus in this election.

Will Saletan: Welcome. I agree. That's probably a big reason why Obama did this—social issues won't hurt him much this year, because everyone's more concerned about the economy.

Dahlia Lithwick: Hi there, thanks for being here! I think you are probably right that jobs and the economy will be the main issue going into November, and this won't change that at all.

June Thomas: But are there things that Obama can do to generate jobs and shore up the economy? It seems to be far easier to get attention for stands on social issues like this. I'm not sure what effect that attention has on his re-electability.

Will Saletan: I agree. But let me turn the question on you: Are there things he could do about gay marriage? He says gays should be allowed to marry. Great. How exactly did his policies change yesterday? How many fingers did he lift to resist the ballot measure in North Carolina?



Sharon Batson: Many are saying this will turn off independents. Do you believe it will, or will they support the president's taking a stance?

Dahlia Lithwick: Here is Greg Sargent this morning trying to work through the articles about whether this was risky for Obama. A lot of interesting stuff in here, and a lot of links to folks saying that Romney doesn’t want to make gay marriage an issue this fall.

Anna Marie Warren: It’s been deemed a states-right issue, no? So what can he do, and what's he saying he's for doing?

Dahlia Lithwick: ‎Here is Chris Geidner's analysis, suggesting that it matters more than folks think, in light of the Obama administration's shift on the DOMA cases.

Anna Marie Warren: I live in Mississippi and am interested in the federalist question.

Will Saletan: Dahlia, what do you think of the federalist approach to changing policy on this issue? Looking back at Roe, and looking at how fast polls are moving on this issue around the country, do you think we'll be better off in the long run if we let states change marriage policy, rather than push to change it from above?

Dahlia Lithwick: I think there's a reason the gay rights groups have been bringing incremental suits in the states, and using DOMA as the vehicle. Marriage really is a state issue; it always has been. There is widespread belief that the blowback from Roe proves that the court moved too far too fast and that incremental change is best.

Will Saletan: I agree. I wonder what social conservatives will be saying if and when legislatures and referenda, not judges, start to roll back the "traditional" definition of marriage. Could get ugly.

Dahlia Lithwick: I also think that's the reason the Ninth Circuit decision in the Proposition 8 case was so much narrower than it could have been. To limit the scope of the Proposition 8 ruling (only in states that permitted gay marriage and then took it away) so as not to have such a sweeping impact.


Will Saletan: I'm really curious about why the Mississippi personhood amendment failed, but the NC marriage amendment passed. Given the Mississippi result, I thought the NC amendment would either fail or barely scrape by. But instead it actually over-performed the last poll, despite a last-minute scare campaign against it a la Mississippi. Is there something about marriage that makes these ballot measures easier to pass?

Dahlia Lithwick: ‎That's an excellent question about why the personhood amendments fail, and the gay marriage amendments pass. When you think about polling on abortion and gay marriage, the exact opposite should be the case, right?

Will Saletan: Yes, it's kind of a head-scratcher. In the sweep of decades, the gay marriage numbers in polls are moving steadily leftward, but the abortion numbers aren't. Yet the abortion ballot measures fail, while the marriage measures don't. I bet you good money, though, that that record ends this year.

Dan Johnson: Interestingly enough, neither a woman's right to an abortion or gay marriage has any impact what so ever on another individual’s life. However, both have a huge impacts on the woman choosing to abort or the gay couple choosing to marry. Fascinating how some people just can't cope when others don't share their ideology. Not your life. It's mine.


Amy Camardo Andersen: I'm troubled by his statement that he would "leave it up to the individual states." What would have happened in 1964 if Lyndon Johnson had left it up to the states to vote on civil rights for African-Americans? I think the policy has to be federal. The Neanderthals have to be dragged into the 21st century.

Will Saletan: Are you sure race is the right analogy? What about abortion? There we changed policy in a single stroke instead of waiting for the states, and many analysts think this haste has bogged us down in decades of abortion war.

Dahlia Lithwick: I think Geidner summarizes it correctly: marriage has always been a state matter (that's why a federal DOMA was such an overreach), but there are federal constitutional limits on state matters.


John Pace: It officially marks (and massively adds to) the shift in public opinion toward marital equality in particular, and tolerance more generally. That's big stuff anytime. But in this time of hyper-partisanship, it's downright huge.