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?

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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.

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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.

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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.

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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.

Will Saletan: But is this really such a break from partisanship? I bet partisanship made a big contribution to it, by convincing Obama he was going to lose socially conservative voters anyway, so why not throw in the towel on gay marriage.

John Pace: Will, you are correct, of course, that some political calculation played into this. And that Obama considered how his statement might help the campaign (or mitigate damage). But it still remains a very important statement regarding civil rights, respect and tolerance. Our acceptance of marriage equality has been teetering around 50 percent for a while now, only recently surpassing it (albeit within the margin of error). I maintain that the president coming out in favor of tolerance and respect on a lightning rod issue of civil rights is just what this country needs. It's going to make a lot of people rethink the issue. It's going to make the issue a topic of dinner table discussion, and provide mom and dad some cover when they say, "Well, yeah, equality really is a good thing." And it's going to energize those already in the choir.

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Brett Verlyn Scriver: My question for you: How do you think this will impact the vote on a constitutional amendment in Minnesota that’s similar to North Carolina’s Amendment 1? Polls are very close here in Minnesota, and many of us are working to keep this ban on freedom to marry out of our constitution.

Will Saletan: The key thing to remember is that with polls shifting (as John noted), one of these states will be the first to vote on the side of gay marriage. Could be Minnesota, could be Maryland—I don’t know. But the undefeated record of conservatives can't withstand the poll shift in the long run.

Dahlia Lithwick: ‎Are you hearing/seeing any shift in tone there after yesterday's announcement?

Brett Verlyn Scriver: I don't know that there is a change in tone per se, but it has been and will be an impetus for conversation for "regular Minnesotans" who don't necessarily follow politics closely, which is a good thing. People should be talking about how the amendment would affect them and their friends and families personally. Here is an example of local media coverage.

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J.P. Pecht: The irony would be if same-sex marriage becomes a wedge issue for 2012 that actually hurts Republicans this time around because it A) motivates Obama's base and B) is supported by a slim (but growing) majority of the general public and independents.

Dahlia Lithwick: I think there is some sense that the Romney campaign is anxious about that very thing.

Will Saletan: Have you noticed all the Republicans screaming and yelling and holding press conferences today to denounce Obama's radical statement? No? Isn't that interesting? You can bet that if the Democratic presidential nominee had said this eight years ago, he'd have been slammed by Republicans the next day. Yet they're keeping quiet or low-toned. Why? Some of it's the economy. But surely a lot of it is that they're no longer sure how the issue cuts.

Claudia Reed Beaudry: Exactly. And didn't I see a poll somewhere that said the overwhelming majority of Democrats support gay marriage, 22 percent of Republicans do, and 57 percent of independents do?

_______________________

Wendy Butler: As much as I appreciate the sentiment, it’s an election year and simply more posturing.

Lori Scribner: It's not posturing. Joe Biden did his usual "speak his mind" thing and opened up the issue. The President had to take a stand either way. And if you're not familiar with Biden, the man speaks from his heart. This wasn't staged.

Dan Johnson Wendy: If this is posturing, it's a very gutsy move. I see him losing some of the middle, and gaining nothing. I can't see Romney ever beating Obama so maybe he just figures why not lay it all on the table.

Dahlia Lithwick: ‎I think the gamble was that this would galvanize young voters and the base, weighed against losing some independents. I defer to Will on how that cuts.

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Sheena Garland: I don't think his statements will shift votes but I believe it means something to folks being denied the right to marry. I don't believe civil rights should be put to a majority vote. North Carolina passed this terrible amendment one with the majority of less than 20% of those eligible to vote. This crap passes because those who tend to vote tend to have these views. People need to quit bitching and vote!

Dahlia Lithwick: I think Glenn Greenwald makes that argument this morning when he talks about what this means to those who have been denied this right.

_______________________

June Thomas: Is there any way this moves from "I've had a change of heart, this group of people shouldn't be excluded from a rights and responsibilities-conferring institution that is open to others" to "I'm going to repeal DOMA"? That's when it starts to count.

Will Saletan: Don't you think DOMA will be the last thing to fall? Politicians aren't exactly brave. At some point, changes in the culture, public opinion, and state policies will make DOMA so obviously antiquated that they'll take it down. No?

Dahlia Lithwick: ‎That cuts against the Cory Booker argument, right? That civil rights questions should never be decided by popular vote?

Will Saletan: Yeah, I disagree with Booker. With apologies to my liberal friends, I think liberals have a facile habit of declaring this or that to be an obvious issue of civil rights (similar to declaring religion or morality obviously irrelevant). In truth, our notions of what counts as a civil right are constantly, um, evolving. Shouldn't we debate that classification as we go? Case in point: Some people think declaring a right to life for the unborn is a civil rights question. Does anyone here think we should roll over and agree that such a policy shouldn't be subjected to a popular vote?

June Thomas: The truth is I cannot be rational on this topic. I don't see it as a philosophical argument, I see it as straight-up discrimination, and I really don't see why I should have to wait for justice.

_______________________

Will Saletan: Thanks for the conversation. I have to head out and get back to work now. I can already hear the next politician evolving!

Dahlia Lithwick: Thank you everyone for the great questions and for reading Slate!

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right.

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