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In 2004, MPA advocates liked to say that pre-empting state legislatures and electorates was of no practical consequence, because only judges would support so alien a notion as same-sex marriage. That argument expired last September, when the California Legislature passed the Religious Freedom and Civil Marriage Protection Act, a bill legalizing same-sex marriage. Republican Gov. Arnold Schwarzenegger vetoed the bill, but the question is no longer academic: How do MPA proponents, who claim to champion democratic decision-making, justify handcuffing the democratically elected Legislature of the largest state in the union?
At bottom, what many MPA proponents want to forestall is not judicially enacted gay marriage; it is gay marriage, period. They say that an institution as fundamental as marriage needs a uniform definition: a single moral template for the whole country.
That argument would seem more compelling if marriage were more important than human life. Many of the same conservatives who want the federal government, not the states, to settle gay marriage also want the states, not the federal government, to settle abortion. Sen. George Allen, R-Va., for example, supports the MPA, but he would like to see Roe v. Wade "reinterpreted" so that states would decide the fate of abortion. Although the 2004 Republican platform calls for a "human life amendment to the Constitution," you will look in vain for any such amendment on the Senate floor.
Two questions for anti-gay-marriage, anti-abortion Republicans: If states can be allowed to go their own way in defining human life, why not allow them to go their own way in defining marriage? Where constitutional amendments are concerned, why is preventing gay couples from marrying so much more urgent than preventing unborn children from being killed?
It is precisely because marriage is so important, and because it is the subject of such profound moral disagreement, that a one-size-fits-all federal solution is the wrong approach. California and Texas, Massachusetts and Oklahoma take very different views of same-sex marriage. By localizing the most intractable moral issues, federalism prevents national culture wars.
In 2006, that argument is no longer hypothetical. Federalism is working. As the public sees that states are coping competently and that no one state will decide for all the rest, the atmosphere of panic over gay marriage has mercifully subsided, providing the time and calm that the issue needs.
The national Republican leadership's bid to upset this emerging equilibrium is demagoguery, which is sad. Conservative politicians' betrayal of federalist principles to distract attention from their broken promises is cynicism, which is sadder. And none of this is surprising -- which is saddest of all.
© Copyright 2006 National Journal
Jonathan Rauch is a senior writer and columnist for National Journal and a frequent contributor to Reason. The article was originally published by National Journal.