Federalism Flip Flops

I noticed something interesting recently about the gay marriage debate. Following the decision of the Massachusetts Supreme Court to legalize gay marriage in the Bay State in 2003, a multitude of conservatives began calling for a constitutional amendment to ban gay marriage in all fifty states. George W. Bush, who had said during his first presidential campaign that he opposed gay marriage but would favor leaving the issue to the states, changed his position and declared his support for a “Federal Marriage Amendment.” During Bush’s 2004 re-election campaign, the GOP platform expressed full support for such an amendment. (How ironic it was that in 1864, the Republican Party platform had called for a constitutional amendment that would give rights to millions of African Americans by abolishing slavery, while in 2004, the Republican Party platform called for a constitutional amendment that would take rights away from millions of gay Americans.) When Wayne Allard (R-CO) sponsored the Federal Marriage Amendment in the Senate, he was joined by 18 Republicans, including Senate Majority Leader Bill Frist, Deputy Majority Leader Mitch McConnell, previous Senate Majority Leader Trent Lott, Chairman of the Senate Judiciary Committee Orrin Hatch, Chairman of the Senate Committee on Agriculture, Nutrition and Forestry Thad Cochran, Chairman of the Senate Committee on Banking, Housing and Urban Affairs Richard Shelby, and Chairman of the Senate Committee on Environment and Public Works James Inhofe. Governor Mitt Romney testified before the Senate in favor of the amendment. All but five Republican Senators ended up voting to invoke cloture in order to break a Democratic filibuster and bring the amendment up for a vote quickly. Conservative support for a Federal Marriage Amendment remained high after the furor over the Massachusetts decision had abated. In 2008, shortly after a strong performance in the Republican presidential primaries, Mike Huckabee wrote, “I support the Federal Marriage Amendment, which defines marriage as between one man and one woman, ending the ambiguity caused by crazy court decisions like those in Massachusetts and California.” Although that year’s presidential nominee John McCain opposed a Federal Marriage Amendment (while appealing to bigots by favoring DOMA and DADT), vice presidential nominee Sarah Palin was asked about her views on a constitutional ban of gay marriage and replied, “I wish on a federal level that that’s where we would go because I don’t support gay marriage.” In the 2012 Republican presidential primaries, Michelle Bachmann, Newt Gingrich, Rick Perry, Rick Santorum, and eventual nominee Mitt Romney all signed a pledge by the National Organization for Marriage stating that, among things, they would support a Federal Marriage Amendment if elected. Vice presidential nominee Paul Ryan had also gone on record in the past as favoring a constitutional amendment to ban gay marriage.

Meanwhile, some pro-gay marriage politicians used the rhetoric of states’ rights. In 2006, Kirsten Gillibrand, a Democrat who won an election to represent New York’s 20th district in Congress and currently serves as New York’s junior Senator, stated that she would vote for the legalization of gay marriage in her state but believed that, “All things that we give to married couples, committed gay couples should be eligible for. And then the question of whether you call it a marriage or not, what you label it, that can be left to the states to decide.” Sheldon Whitehouse, a successful Democratic Senate candidate from Rhode Island in 2006, said, “I support gay marriage,” and argued that, “It is wrong for the federal government to intervene in what has always been a state issue — the regulation of marriage.” According to ThinkProgress.org, when President Obama declared his support for gay marriage in 2012, “Obama stressed that he personally affirms same-sex marriage, but says the matter should be left to the individual states.”

Now, a shift has occurred. 2012 drew to a close with Barack Obama defeating Mitt Romney by a not-particularly narrow margin, three states legalizing gay marriage via public referendum, and Minnesota voters defeating a proposed anti-gay marriage amendment to their state constitution. Wisconsin voters rejected Paul Ryan and sent a pro-gay marriage, openly lesbian candidate to the Senate. In 2013, the Supreme Court struck down Prop 8 and section 3 of DOMA, and seven more states chose to legalize gay marriage. Both sides seemed to have largely changed their views on whether the states or the federal government should decide the issue of marriage equality. Governor Mike Pence of Indiana, a conservative Republican, co-sponsored the Federal Marriage Amendment back when he served in Congress. He now avoids directly answering questions about whether he still wants to amend the Constitution and says, “my hope is that the Supreme Court will affirm the fact that this question should be resolved by the people and by the states.” This year, Mike Huckabee was asked at a CPAC press conference whether he now wants gay marriage to be decided at the state or federal level and gave an evasive answer before walking off. Ted Cruz, arguably the current U.S. Senator most closely associated with the Hard Right, strongly opposes gay marriage but says the issue should be decided by the individual states. Even former Christian Coalition leader Ralph Reed grudgingly admits that a Federal Marriage Amendment would be, “trying to put the genie back in the bottle.” Meanwhile, President Obama has begun to tacitly signal support for federal intervention to overturn state laws against gay marriage. He favored the Supreme Court’s decision to strike down Proposition 8, and his administration has chosen to recognize same-sex marriages performed in Utah and Michigan after those states’ anti-gay marriage laws were temporarily struck down by federal judges. According to polling data, in 2006, 54% of gay marriage supporters wanted the issue decided by the states, while 56% of gay marriage opponents wanted the issue decided by the federal government. In 2013, 54% of gay marriage supporters wanted the issue decided by the federal government, while 60% of gay marriage opponents wanted the issue decided by the states. The reason for this, of course, is that at this point in time, any federal definition of marriage will inevitably be gender-neutral. A constitutional amendment banning gay marriage is impossible to pass in this day and age, but some sort of federal intervention to legalize gay marriage in all 50 states is looking more and more likely. Just five years ago, by contrast, my statements in support of a constitutional amendment legalizing gay marriage in all fifty states were generally met with the assertion that such an amendment could not pass.

The historian in me is reminded of the way in which proslavery and pro-segregation Southern politicians tended to handle the matters of slavery and segregation in relation to states’ rights. At the Constitutional Convention in 1787, South Carolina delegates successfully pushed for federal protection of slavery in the form of a clause that would require slaves who escaped to free states like Massachusetts to be returned to their masters, regardless of what the free state governments wanted. In 1793, Virginia slaveholder George Washington signed a bill to further impede efforts of free states to offer shelter to runaway slaves. In 1850, even stronger legislation was enacted to force Northerners to extradite runaway slaves who crossed the Mason-Dixon line, even if Northern states desired to allow runaway slaves who entered their borders to live as free people. In 1857, the United States Supreme Court included in its infamous Dred Scott decision an assertion that no state could give blacks the rights granted to U.S. citizens. The ruling understandably caused great controversy in states like Maine, Vermont, New Hampshire, and Massachusetts, where blacks were allowed to vote. The decision was hailed by proslavery Southerners. But then, in 1860, antislavery Republican Abraham Lincoln was elected president, and white Southerners began howling about states’ rights being violated by the feds–while still paradoxically griping that various Northern states refused to extradite fugitive slaves and refused to allow Southerners to bring their slaves with them when vacationing in the North. Of course, once the South achieved temporary independence, a new Constitution was written with the fugitive slave clause intact, and a new clause was added making it illegal for any state to prevent visitors from bringing their slaves with them. So much for states’ rights. After the Civil War, this inconsistency on states’ rights continued. At various points, Congressmen Andrew King (D-MO) and Seaborn Roddenbery (D-GA), as well as Senator Coleman Blease (D-SC) introduced constitutional amendments to ban interracial marriage. In a speech, Roddenbery specifically referenced the fact that interracial marriage was legal in states like Massachusetts and that this could not be permitted by the federal government. During the Great Depression, the Roosevelt Administration made sure that New Deal programs were kept segregated not only in Dixie but also in the North. Wisconsin wished to have its Civilian Conservation Corps (CCC) camps integrated. CCC Director Robert Fechner, a Chattanooga native, responded that this was unacceptable and deported black CCC workers living in Wisconsin to segregated camps in Illinois. Nary a peep of protest on the grounds of states’ rights was heard from Southern segregationists. But starting in the late 1940s, when major federal intervention on behalf of civil rights became a real possibility, segregationists began to cry that states’ rights were being threatened by an overly powerful federal government. I guess expecting consistency from bigots is too much to ask.

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