Federalism, Centralism & Gay Rights.

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Over at The Volokh Conspiracy website. law professor Ilya Somin argues the federalism case for gay rights, finding that while the federal government has been actively harmful to gay legal equality, real progress has been made in at least some individual states and these can, over time, serve as models for others. He writes:

gays can succeed politically at the local and state level because 1) they tend to be concentrated in a few specific areas, magnifying their influence, 2) those areas will tend to be places where antigay political forces are comparatively weak, and 3) in such relatively tolerant locations, a higher percentage of the already large gay population will be out of the closet and able to participate in pro-gay political action.

Concludes Somin:

there are important lessons here for both the gay rights movement (which should be more wary of the growth of federal power than many of its members seem to be), and for our broader understanding of the relationship between federalism and minority rights.

7 Comments for “Federalism, Centralism & Gay Rights.”

  1. posted by Tom Scharbach on

    Somin\\’s arguments make sense.

    In my view, however, all Americans should resist efforts to federalize marriage law, as well resist federalization in other areas that encroach on reserved powers. The last thing our country needs is more federal encroachment in any area.

  2. posted by Northeast Libertarian on

    Federalism is a non-issue.

    It doesn’t matter whether the government which violates one’s constitutional rights is federal, state or local. Regardless, it should not have the authority to violate one’s constitutional rights.

    The reality is simple. Most of the people calling for a “federalist right” for states to violate the equal protection clause of the constitution for gay and lesbian couples wouldn’t assert a similar right to violate, say, the second amendment rights. Do you think conservatives would respond to a statewide blanket ban on firearm ownership by saying “oh, well it’s a state issue, not a federal one, and the majority have spoken?”

    Why should it be any different with equal treatment for gay couples under the law?

  3. posted by Tom Scharbach on

    NEL: \\”It doesn\\’t matter whether the government which violates one\\’s constitutional rights is federal, state or local. Regardless, it should not have the authority to violate one\\’s constitutional rights.\\”

    No government, at any level, has the right to violate a citizen\\’s constitutional rights.

    But you are looking at the question from the wrong end of the barrel, NEL, I think.

    The reserved powers are important, aside from the obvious issue that increased centralization of power historically leads to increased abuse of power, because the reserved powers allow the several states to move on social, economic and political issues when the nation as a whole cannot or will not.

    Marriage in Massachusetts, civil unions in Vermont, domestic partnerships in California, and so on, would not be possible without the reserved powers. It is because the reserved powers allow states to regulate domestic affairs that the social conservatives are so determined to eliminate or curtail the power of the states to regulate domestic affairs.

  4. posted by Northeast Libertarian on

    I would agree with your arguments IF marriage powers were exclusive to the states — however, they’re not. A great deal of the power of marriages comes from the federal government — for things as basic as getting your foreign spouse a visa to more sophisticated things such as travelling on each other’s passports in a pinch when travelling together, there’s a lot of federal involvement.

  5. posted by Tom Scharbach on

    NEL: \\”I would agree with your arguments IF marriage powers were exclusive to the states — however, they\\’re not. A great deal of the power of marriages comes from the federal government — for things as basic as getting your foreign spouse a visa to more sophisticated things such as travelling on each other\\’s passports in a pinch when travelling together, there\\’s a lot of federal involvement.\\”

    The fact that the right to grant or deny benefits attendant marriage are not entirely reserved to the states — that is, that the federal government reserves to itself the right to grant or deny federal benefits — does not change or, in my view, lessen the reasons to keep the power to regulate domestic affairs within the province of the several states.

    The idea that the federal government, through DOMA, can refuse to recognize a marriage validly entered into under the laws of a state is an open question at this point. My guess is that the federal government, based on federal social policy considerations that are different than the social policy considerations of the state validating the marriage, can refuse to recognize some valid marriages under our Constitution. But many legal writers disagree with my view on that point, and the matter will eventually be resolved by the Supreme Court.

    In any event, federalizing marriage is to jump from the frying pan into the fire, in terms of federal separation of powers, and I think that it is a bad idea.

  6. posted by Northeast Libertarian on

    My guess is that the federal government, based on federal social policy considerations that are different than the social policy considerations of the state validating the marriage, can refuse to recognize some valid marriages under our Constitution.

    I’m more than willing to bet that this position on the part of the Feds fails both the rational basis test and the equal protection clause of the Constitution.

    federalizing marriage is to jump from the frying pan into the fire, in terms of federal separation of powers, and I think that it is a bad idea

    I think government power over marriage in general is a bad idea. I view the whole “state versus feds” to be a distinction without a difference from a realpolitics view, and in the case of a number of various legal scenarios, the federal government has more power over key areas of concern anyway.

    I’d just as soon open up the “benefits” of marriage to everyone — sponsor any old person you want, whether you’re married or not, etc. Remember many of what we now view as “rights of marriage” were once rights of EVERYONE which government took away over time and transformed into “special rights.”

  7. posted by Ed Brown on

    The problem is that if gay rights only becomes a local/state matter then gay people will only have protection where is is less likely to be needed.

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