I WENT UP to Boston to visit my brother during break last week, mostly to maintain familial ties that seem to atrophy over hundreds of miles and busy schedules. It being my first visit to Beantown, my brother took me to view all of the things tourists typically see: Boston Commons, Harvard and the State House.
When I visited the State House, what I saw was not a picturesque panorama of Beacon Hill, but rather a raging battle of the culture war.
Meeting inside the golden-domed capital was the state's constitutional convention, considering an amendment to ban gay marriage but allow civil unions. Outside, protesters on both sides of the debate were carrying placards, chanting and generally arguing with others about their beliefs.
Needless to say, the scene in Boston was less than placid. However, activity at the state level in state legislatures, rather than the federal government, is the proper means and venue to deal with the issue of gay marriage.
In our federalist system, the states are to be the laboratories of democracy, to share an equal part with the federal government in upholding democratic society. A federal marriage amendment to the Constitution strips the states of their roles in this process by creating one policy for all. This won't satisfy either the gay rights activist in Berkeley or the social conservative in Birmingham. What's more, creating one rigid policy for 50 states is likely to increase the chance that the policy will be difficult to work with and adapt into the law of the states.
Working on the assumption that the Defense of Marriage Act stands constitutional muster and that states don't have to give full faith and credit to other states' marriage policy, creating a multitude of different policies through the states fulfills the states' role as laboratories of democracy. It is also more likely to create more nuanced and creative policy that other states might agree with and resolve themselves.
State responsibility on marriage issues will preserve the states' traditional roles and will give both pro and con sides greater input.
Talking about the Massachusetts constitutional convention, a Boston Globe editorial from last Friday stated, "The parliamentary horse-trading shows why matters of fundamental constitutional rights are better decided by the courts than in legislative bodies."
The Globe has this backward; legislatures are (and historically have been) the best venue for matters of rights. The Constitution was enacted without any of what we now know as the Bill of Rights. Rather, it was added by Congress after much debate and markup of James Madison's proposal of the amendments. Not one court or judge had a say in its passing. It would appear that dealing in rights, at least those legitimated by the Constitution, is primarily an activity for legislatures.
History isn't the only factor which places legislatures ahead of courts in this matter. For one, legislatures are directly responsible to the electorate, putting their decisions more in line with the will of the people in their particular constituency. This gives whatever decisions the legislatures make a sense of legitimacy. If, for example, a district has a representative who is very much against gay marriage while the constituency is clamoring for it, they can vote that person out of office. Except in states where they are elected, there's practically no removing sitting court judges and justices.
Moreover, the federalist approach to the difficulties surrounding gay marriage "diffuses the tension," as Michael S. Greve of the American Enterprise Institute has written ("Same Sex Marriage: Commit It to the States," aei.org, March 10). The federal amendment before Congress makes gay marriage a one-time, all-or-nothing battle with a decisive, single course of action resulting. Limiting the issue to the states will essentially buy time for reason, rather than passion, in the national discussion on the issue, and keeps the flames of this apparent culture war at a low level.
As judged by polling and general sentiment, a majority of the country is not ready for gay marriage yet. A state-by-state approach to this divisive issue values our federalist roots and gives the states that object to such marriages their say in democracy.
Jim Prosser's column appears Tuesdays in The Cavalier Daily. He can be reached at jprosser@cavalierdaily.com.
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