As a practical political matter, full-bore gay marriage is useful to have on the table, so that marriage lite—civil unions, domestic partnerships—seems by comparison a moderate option. Supporters of gay rights can learn from the anti-abortion playbook of the past three decades. The positions of the pro-life hard core have served to make modest restrictions on abortion seem reasonable to the conflicted middle. But the risk of righteous passion is overreach.
In retrospect, it’s unfortunate that we pro-choicers won by means of Roe v. Wade. The legal reasoning was dubious, and it inflamed a chronic anger (against the courts, the irreligious, Washington, Democrats) that Republicans have exploited masterfully ever since. If the decision had come, say, a decade later, political history would be quite different. Back in 1973, the tide of opinion and politics was clearly moving in the pro-choice direction. Thirteen states, including six in the South, had recently liberalized their statutes to allow abortion if the fetus had any severe defect or if a woman’s physical or mental health was endangered. But just four states (including New York) had fully legalized abortion. Roe shockingly short-circuited an organic, progressive political process and slammed our politics in a religious and rightward direction.
By contrast, consider the political-judicial history of interracial marriage. The timing was perfect. In 1967, when the Supreme Court got around to declaring laws against interracial marriage unconstitutional, only sixteen states still carried such statutes on their books—whereas less than two decades before, it was illegal for a white to marry a black in most states. In the progress toward marital equality, it’s not yet 1967.
And the way to work it is locally, ripe state by ripe state. Before Massachusetts’s supreme court ignited the national debate, polling showed a solid majority of the state’s citizens in favor of gay marriage. Last year, California passed a bill legalizing gay marriage; the state’s former-bodybuilder governor vetoed it, but if Schwarzenegger is beaten this fall, it’ll be passed again and signed by a Democratic governor. That would be preferable to judges’ remaking the law—the state court of appeal in San Francisco will soon rule on whether the existing statute is unconstitutional—but even a pro-gay judicial outcome would be in sync with the California political consensus. Similarly, any day now New Jersey’s supreme court may rule that state’s existing law unconstitutional—but a poll last month found that Jerseyites now support gay marriage 50 to 44 percent.
States’ rights is an essential American principle—without any inherent ideological tilt.
In some places, gay marriage or even civil unions will never be legal. In 2004, over three-quarters of Georgia voters approved a state constitutional amendment prohibiting same-sex marriage, which the state supreme court affirmed earlier this month. So far, eighteen other states have similarly amended their constitutions.
That’s too bad, but that’s the way it goes; such is the nature of a federal 50-state America. During liberalism’s triumphal march at mid-century, everyone imagined that states’ rights were exclusively a pretext for last-ditch conservative attempts to restrict liberty and civil rights. And back then, constitutional amendments (to lower the voting age, to guarantee women equal rights) were the specialty of progressives. But now it’s the right that defaults to proposing constitutional amendments to try to get what it wants. In 1972, in its first and only big decision on same-sex marriage, Baker v. Nelson, the U.S. Supreme Court ruled that Minnesota could define marriage any way it saw fit—a precedent that’s been used ever since as an argument against gays’ marrying. Yet with states starting to legalize gay marriage, the states’-rights principle of Baker may now become a tool for progress instead of conservatism. The shoes are on the other feet.
With the right ascendant, it’s clear that states’ rights is an essential American principle without any inherent ideological tilt. If liberals want blue states to be able to pass their own enlightened laws concerning gay marriage (or abortion or medical marijuana), then in the 21st century we really have to be willing to let red states enact laws with which we strongly disagree. As a result, the bluest places will become bluer and the reds redder, each pursuing its own vision of virtue. Which looks preferable to having either side force every American to live by its moral rules, and lousing up our politics or even our Constitution in the process. If letting Georgia and Indiana and Utah go their own way is the price for Massachusetts and California and New York’s being free to go ours, I’m willing to pay it.