Political Animal


April 04, 2013 4:11 PM Federalism As A Strategy, Not a Principle

By Ed Kilgore

At the New York Times, veteran legal journalist Linda Greenhouse notes some of the cheerleading (from progressives even more than from conservatives) for the probability that the Supreme Court will strike down the Defense of Marriage Act on federalism grounds, and marvels at the short-sightedness of it all:

You might have thought the case, United States v. Windsor, was about equality: marriage equality, in the graceful current locution. The two lower federal courts that ruled in this case on its way to the Supreme Court held that the Constitution’s equal protection guarantee required the federal government to treat married couples, same-sex and opposite-sex, equally for purposes of the more than 1,000 provisions of federal law that relate to marital status.
I thought that’s what the case was about, too. But what reverberated from the bench was the discordant music of federalism - the federalism that almost sank the Affordable Care Act; the federalism that seems about to put a stake through the heart of the Voting Rights Act; the revival of the mid-1990s federalism revolution that had seemed, until recently, to have run its course at the Supreme Court with the departure of two of its most energetic guardians of states’ rights, Justice Sandra Day O’Connor and the late Chief Justice William H. Rehnquist.

There would be an immediate cost for a destruction of DOMA on federalism grounds, notes Greenhouse:

It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th.

But beyond that, she argues, such an outcome, which would cut against a series of landmark decisions—including the one that struck down state miscegenation laws—on the constitutional limits on state authority to regulate family life, would be a very bad sign of things to come:

Federalism tends to emerge from under the rocks in times of constitutional ferment, when the status quo is cracking and needs some propping up.

That’s true in politics as well as in constitutional law, as evidenced by the support most conservatives lend to federal laws and even constitutional amendments to secure objectives ranging from an abortion ban to a federal definition of marriage, to protections of “property rights” and creation of a “market-based health care system,” precisely up to the point they are achievable, only then retreating to a “federalism” argument for leaving such questions up to the states. On health care virtually all Republicans right now are simultaneously pushing for devolution of Medicaid to the states and for federal preemptive legislation allowing interstate insurance sales (which would neuter any state regulations insurance companies found inconvenient). We’ve seen similar hypocrisy in many other areas (notably efforts during periods of Republican control of the White House and the Congress to preempt state environmental and banking policies their business clients dislike).

Progressives would be wise not to emulate this habit of respecting federalism when, and only when, it serves their immediate purposes. As Greenhouse concludes in discussing the DOMA case:

Last week, Solicitor General Verrilli, pressed repeatedly to say something nice about federalism, refused to play the game. The case, he insisted, was about “discrimination.” Lawyers rarely get the chance to speak to the court in paragraphs. When Mr. Verrilli got that chance, he took it, telling the justices: “I think it’s time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law. This is discrimination in its most very basic aspect.”
It was as eloquent a statement of principle as the court hears these days.
Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • boatboy_srq on April 04, 2013 4:27 PM:


    Daniel Luzer just commented on a related item just last month:


    IF DOMA gets overturned on federalist grounds, and the Red States consequently feel free to go on playing the bigoted jerk, then there's an immediate remedy already in the works. If Texas, as Luzer notes, is a model, then they're already in the business of encouraging LGBT folk to live (and marry) elsewhere, and it's hurting their bottom line something fierce. Adding "traditional marriage" and other baggage required of their residents will only accellerate the LGBT/Progressive flight that's already underway.

    If Red States want to make themselves uncompetitive for purity's sake, let them. There are better places for LGBT people to live, work and play than most of those environs, and plenty of communities and businesses who will welcome the resulting influx of talent and disposable income.

    And if the Reichwing keeps waving the nullification/secession flag, this is one more reason that the USA can present as just cause for showing them the door. Who needs secession, when eviction from the Union would be a much more powerful statement?

  • LaFollette Progressive on April 04, 2013 4:38 PM:

    Where would this great nation be without the majestic sovereignty of our arbitrary sub-national governing units?

  • c u n d gulag on April 04, 2013 4:49 PM:

    Somehow, I suspect that if inter-racial marriage was left up to the individual states, the Loving’s would either have had to move North to marry, lived in “sin” in VA, or somewhere else in the South, or died - unwed.

    And we’d STILL have states (where else, but in the South?) claiming they'd have to wait until after ALL of the evidence is in before sanctioning inter-racial marriages – even over 45 years after the Loving v. VA decision, if it was decided in favor of state sanctioning.

    I said a few weeks ago, 'Beware of the backlash if the SCOTUS approved this," like they did Roe.

    But, I'm starting to think, let their be backlash on this issue.
    I think a lot of Bubba-crackers are finding out that some of their buddies, and their Bubbette's girlfriends, would prefer butt-buddies and gal-pals, if only the stigma would go away.

    Besides, people "Come-out" in public, women abort in private.
    Sad, but there's a difference.

  • Peter C on April 04, 2013 5:04 PM:

    While it is true that our nation began as a federation of 13 distinct and separate colonies, increasingly the whole idea of “state’s rights” seems like an anachronism to me. People move around a lot more these days than they did 200 years ago. I’ve lived in five states so far. If the laws in states are significantly different, do I really have ‘equal protection under the law’ as guaranteed by the 14th Amendment?

    Frankly, I feel that all “state’s rights” arguments are weak and bogus. This becomes apparent when the same people trumpeting the need for states to be ‘laboratories for democracy’ subsequently want to eliminate the department of Education because of the 10th amendment. There is little point to ‘letting the states experiment and find the best solution’ if you prevent a central authority from implementing that best practice across all states.

    The truth is that Republicans who are most fierce in their defense of “state’s rights” have lost the majority opinion of the nation as a whole but are struggling to retain control in pockets of the nation for as long as they can, as if they have a Constitutional right to be bigoted, backward, and socially medieval. “We don’t want science because of state’s rights!” is a stupid mind-frame.

    We needed the 10th amendment to come together as a nation, but at some point, I’d hope we could get past the Civil War and decide we really were ‘one nation’.

  • Gov't Mule on April 05, 2013 9:17 AM:

    If SCOTUS uses federalism to decide DOMA, it will create a very confusing situation that would undoubtedly require many more court cases.

    If the Supremes decide that marriage equality in places like Massachusetts and nine other states is the law of the land JUST in those states, this affects marriages in a number of different ways. For example, are marriages in Massachusetts going to be legally recognized in other states? Suppose a couple moves to a state that prohibits marriage equality. Would that couple be allowed to file jointly on their state returns, be allowed to visit each other in hospitals, etc.? How will allowing some gay couples to enjoy the same rights as married straight people affect other gay couples in the same state who will seemingly be not allowed to enjoy those rights. Doesn't it create two classes of gay couples in those states that deny them the right to marry?

    And what about any federal benefits? Will this decision mean that gay couples in those states that legally approved of their union be allowed to file their federal taxes jointly, collect each others Social Security and avoid the estate tax since was why Windsor went to court in the first place.

    IMO SCOTUS should either decide DOMA is unconstitutional on 14th Amendment grounds or they should decide the law is constitutional. A victory for marriage equality based on federalism would lead to a confusing patchwork quilt of laws and simultaneously create two classes of gay couples within a state.

  • Sgt. Gym Bunny on April 05, 2013 9:54 AM:

    I, too, feel that the "state's rights" argument is better left to the antebellum period of American history, especially on matters of civil and human rights. As others mentioned above, Americans are highly mobile and our mobility is often linked to our economic prospects. We move to different states for better education or better jobs all the time, and people shouldn't be made to check their dignity at the state line.

    And people who have the misfortune of being born poor and gay in Mississippi and without the economic resources to pick up and move shouldn't be forced to live without the rights of dignity afforded to folks in New York, Maryland, or Massachusetts.

    Just like straight people, I'm pretty sure that many gay people are just as attached to their hometowns and would like to stay. And they shouldn't be forced out bigoted laws or made to leave to find their dignity in other state.

    Just sayin'...

  • cmdicely on April 05, 2013 10:32 AM:

    I think the argument Ed presents here misses the point badly: while there may be cases where there is an important distinction, at least in terms of precedent, between a decision on federalism grounds and a a decision with similar substantive impact in the immediate case on other grounds, DOMA isn't one of them.

    The idea DOMA -- but not the federal marriage benefits for which DOMA imposes discriminatory restrictions -- being found unconstitutional on "federalism grounds" that some progressives have cheered, is the Court holding out that marriage is generally part of the powers reserved to the States, that the federal extension of benefits to those recognized as married by the State is a legitimate exercise of federal power, but that adding the particular discriminatory limitations to those benefits incorporated in DOMA is not "necessary and proper" to the powers exercised in extending the benefits.

    Even if it doesn't cite 5th Amendment Due Process considerations as the basis for why that discriminatory application isn't "necessary and proper", there is little substantive difference between such a decision on one expressly on 5th Amendment grounds.

    (Gov't Mule's suggestions above that DOMA should be invalidated on 14th Amendment grounds is bizarre: as a federal action, if it fails on Due Process Grounds it is 5th, not 14th Amendment. The gay marriage case that addresses the State authority to limit marriage to opposite sex partners, and which could sensibly be decided on 14th Amendment grounds, is the Prop. 8 case -- Hollingsworth v. Perry -- which, while perhaps the least likely case to get a clear definitive decison, is the on in which all the marriage marbles are on the table, and in which the grounds of the decision and not just which side notionally wins really matters.)

  • PTate in MN on April 05, 2013 11:23 AM:

    Peter C: "...the whole idea of "state's rights" seems like an anachronism to me"

    I'll second this. It is no coincidence that the strongest defenders of states rights come from the same states that were defeated in a war fought to end the institution of slavery. John "Nullification" Calhoun lives on. The point of this post is a good one. Politicians retreat to "states rights" when they know that they have lost majority opinion nationwide . It isn't a principle, it's a last ditch attempt to resist change. It's the political version of the "Citadel" housing development in Idaho. If your values are under siege, build high walls and get lots of guns to make you feel like you are in control.

    The only justification for state's rights that I can think of is that Republicans try to drag the nation into mediocrity and inequality whenever they control things at the national level. In the Bush years, those of us who live in states that are above average were glad for the principle of state's rights. Ultimately, I wonder if a nation of 300 million+ people can survive without a strong and effective federal government run by the best of the best. The idea that a democracy could be governed by 50 bickering states--some of whom are governed by the willfully ignorant with rather medieval notions of 'government'-- is another Republican delusion.

  • Yastreblyansky on April 05, 2013 2:39 PM:

    I know it's too late, but I wish people would stop using "federalism" to mean "anti-federalism" with the implication that Washington, Adams, and Hamilton were all states'-righters.