An Inconvenient Federalism: Marriage and Religious Liberty

Published March 29, 2013

Cato’s Jonathan Adler, writing in Reason, gives a more eloquent version of the argument I’ve advanced in the past about the perils of tossing federalism aside on the marriage issue.

“The arguments for holding Proposition 8 unconstitutional do not seek to vindicate a “right to marry” so much as they seek to alter the definition of what constitutes a marriage in the first place. Marriage has been understood to constitute the union of one man and one woman through most of human history… Many of us find this to be an unpersuasive justification for denying state recognition of same-sex couples, but this is not a sufficient basis to render such policies unconstitutional. Federalism requires that state governments are allowed to adopt unsound policies. Indeed, it is only by allowing a diversity of policy choices to be made that we can discover the mix of policies that best protect individual liberty and facilitate the pursuit of happiness.”

Adler notes the historical precedence of state authority over the definitions of family law, and then moves on to the tactical problem:

“Advocates of same-sex marriage, myself included, believe it is proper to expand the traditional definition of marriage to include same-sex couples. Insofar as the state is in the business of licensing and recognizing marriages, it is prudent, wise, and just to recognize that two people of the same sex are just as capable of creating an enduring, committed relationship and providing for the care and nurturing of children as many heterosexual couples. But this does not mean a state’s refusal to take this step violates the Constitution. Not every policy that is unwise or even unjust is unconstitutional.”

This reminds me of Thomas’s position on Lawrence, which used to be on my wall in the Senate offices. The decision to stop the ongoing conversation of democracy and assert a nationwide standard is always tempting for those who view the courts as an avenue to getting the result they want ahead of the trendlines of culture, but I am in favor of trusting the people in these matters to decide these issues for themselves.

The larger danger is the inevitable clash between religious liberty and a newly required and nationally legitimized approach to same sex marriage. The Illinois proposal currently being considered by their state legislature is a perfect example: one which would require religious associations to essentially give up their daily activity of evangelism, retreat from public life, and sacrifice their property rights if they are viewed as holdouts on the wrong side of the cultural trend. It is a perfect encapsulation of the thorny religious liberty issues which will inevitably be litigated over the coming decade – namely, how much the state can demand of churches, synagogues, and mosques to bend to the new law likely imposed by the Supreme Court. Let me draw your attention to page 5.

“Nothing in this Act shall be construed to require a religious organization as defined in paragraph (1) of this subsection (a-10) to make available a parish hall or other religious facility on the premises of a church, mosque, synagogue, temple, or other house of worship for solemnization or celebration of a marriage that is in violation of the religious organization’s religious beliefs, provided that: (A) the religious facility is primarily used by members of the parish or congregation for worship and other religious purposes; (B) for solemnization and celebration of marriages, the religious organization generally restricts use of the religious facility to its members and opens the facility only occasionally to non-members on an unpaid basis; and (C) the religious organization does not make the religious facility available to the general public for rental or use for which a rental fee or other compensation is required or for which public funding or other public benefit is received.”

There are a host of problems in this “provided that” section, nearly all of which are bent against the ability of religious institutions to evangelize – they must close their doors to outsiders entirely in order to abide by this rule. Regarding (A): how do we assess a facility’s role as “primarily” to serve members of the parish or congregation? Similar to the challenge in the contraception mandate situation, where there’s been concern federal representatives would have to survey students at Catholic schools to see how many were actually Catholic, this would essentially eliminate whole swathes of church activity. As for (B): the vast number of protestant institutions, where membership is often more nebulous, rent their facilities to non-members for use in weddings, a not insignificant source of income (and a not insignificant cost for the facility). The combination of (A) and (C) would simply eliminate the bulk of functional church activity. Non-churchgoers may think of a religious institution as a Sabbath-focused entity – in reality, the five days a week classes, day schools, counseling, fellowship hall scout meetings, soup kitchens and the like are the primary focus of most active denominations, featuring the prevalence of non-members and the active participation of many other non-profit groups, which will now have to choose between receiving public benefit (does this include tax treatment?) and their use of church facilities.

But remember, we’re not forcing the churches to do anything. They just need to understand that functionally, from the perspective of the state, they will eventually have to choose: either they are public facilities which can be used by all, or they can lose their tax status. Churches and other religious groups will have to resolve their willingness to engage legal protections and prepare to lose their tax status (as we’ve already seen in New Jersey) in anticipation of the inevitable lawsuits, and may wish to incorporate their schools and attendant organizations in a different manner so as to create legal firewalls. It is a libertarian pipe dream that such clashes with churches and religious institutions are in any way avoidable.

In a proper federalist system, states would work according to the laboratories of democracy model: they would see how this approach plays out in Maryland and Maine over the coming years, and alter their laws accordingly to protect religious organizations, businesses, mosques and churches, and prevent community clashes as best possible. State laws differ dramatically, and for a reason. I expect the Court to prevent such an approach: instead of allowing the people to decide a contentious issue of rights, love, and childrearing, they will almost certainly rip this away from the people.

They should trust the people more. If marriage is to be redefined, it ought to be by the American people, not unelected judges. We’ve seen the clashes already in California on this point, but by taking the issue national, the Court will sow social discord in significant ways with yet another enormous expansion of the Equal Protection standard, one which will inevitably set it up for future difficulties as plaintiffs take this new path to a logical conclusion. The reaction will not be as longterm as Roe, but it will be more divisive than the elites in media and politics expect, as any issue is where a decision is forced rather than allowing the citizenry to come around to the idea, where they view such matters as the working of legitimate democracy.

Ultimately, this debate is likely to do more damage to the public square than it ever should have in a system which understood the importance of balance, patience, and faith in the federalist approach which served this nation so well in the past. Trust in government is already at its nadir, and Supreme Court approval is near record low. Perhaps this is because the people understand they no longer direct the course of legitimate government which is supposed to serve their interests, and that on issues of life, death, and love, the will of a far-off power is now regularly imposed on them.

As Ronald Reagan noted, the Founders recognized the importance of “sovereign states, not mere administrative districts for the federal government”, and “regarded the central government’s responsibility as that of providing national security, protecting our democratic freedoms, and limiting the government’s intrusion in our lives — in sum, the protection of life, liberty and the pursuit of happiness. They never envisioned vast agencies in Washington telling our farmers what to plant, our teachers what to teach, our industries what to build… They believed in keeping government as close as possible to the people.” That principle is an inherently conservative one, a wise one, and should not be dismissed so quickly simple to achieve another political end.

[First Published at Ricochet]