Streams

Invoking States' Rights

Thursday, June 30, 2011

Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on the Brian Lehrer Show, constitutional scholar and professor at the University of Texas School of Law, Sanford Levinson, will discuss the history of federal vs. states' rights.

President Obama, under pressure to take a stand on gay marriage, has repeatedly deferred. After the passage of same sex marriage in New York, the president invoked states' rights in his response to whether same sex marriage should be federally protected. He referred to the Defense of Marriage Act (DOMA), saying the federal law was inappropriate for an institution traditionally conducted at the state level.

States’ rights have been invoked for everything from defense of segregation and slavery, to proponents of civil rights, to opposition to the Patriot Act, to supporters of states’ rights to regulate marijuana. Levinson said that diversity is part and parcel of federalism.

If you take federalism seriously, it is a protection of diversity… Sometimes there will be a conflict between the federal and the state governments, and if there’s an out-and-out conflict, the federal government will almost always win.

Levinson said DOMA is not a direct conflict with New York's new law, as the federal mandate only states that the national government and other states are not bound to recognize or honor marriage laws of another state. That doesn’t mean that New York can’t have same-sex marriage as a state policy.

Critics of the president have pointed out the similarity between the restriction of gay marriage and the restriction of interracial marriage, a law that wasn’t overturned until the 1960s. Had that law not been overturned, the president’s own parents would not have been allowed to marry. 

I think it is accurate to say that traditionally marriage was regulated by the states, but it also completely accurate to say… that that tradition came crashing to an end in the 1960s over the issue of race, which has been the principle issue of states’ rights in our history.

He said that in that case, the courts found that under the 14th amendment, people could not be treated unequally by the state on the basis of race. Current litigation makes the point that that argument holds true for same-sex marriage as well.

There is a prevalent paradigm that Democrats like centralized power while Republicans favor states’ rights, but closer inspection does not show this to be always the case. Many of those who favor states’ rights over regulation of marijuana, for example, identify as Democrats. Levinson has an explanation.

Federalism arguments are often opportunistic. It really depends, often on what the issue is.

The Tea Party movement, for example, often invokes states’ rights, despite fighting against initiatives determined by the states that don’t fit their agenda. Levinson said the push for states’ rights is most often tied to policy outcomes.

Look at Michele Bachmann, who professes to be a very very strong states’ rights buff, but who also says that she would support a constitutional amendment that would prohibit New York from having its own policy on marriage, because she is so committed to the sanctity of heterosexual marriage.

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Comments [16]

David

Should the gay people of Iowa and New York have waited for the Federal government to legalize gay marriage? Isn't the idea of States' Rights good in this case? How about all of the states that have legalized medical marijuana?

You can't have it both ways. The ultimate decision of what one does with one's own body should be left up to him or her. The farther one gets away from a centrally-planned legal structure, i.e., the Federal government, the closer one can achieve this.

Just imagine if the Federal government was able to pass a law that overrode the states that have legalized gay marriage or legalized medical marijuana? People always want the Federal government to override a state law that they disagree with, but want a state law that overrides a Federal law that they disagree with. I'd rather have the state law to deal with. It's easier to move from New Jersey to New York than to move from the United States to another country.

Jun. 30 2011 11:58 AM
jm

john from office: ;) I don't happen to be gay, but I try to walk a mile in my friends' shoes and it's downright shocking sometimes when I realize the rights I sometimes take for granted. Anyway, I'm glad you were fond of the comeback!

Jun. 30 2011 11:00 AM
john from office

JM, I see your point. Good come back!

Jun. 30 2011 10:48 AM
Brian from Greenpoint

I am confused as to why the president would lean on the "states' rights" argument, as it invariably translates today into a conservative stance where local citizens snub their noses at the ethical/moral leadership of big government. But isn't there a time/place where the federal government should assume the lead on these kinds of ethical/moral questions? Though we might want to advance secularism as a kind of objective separation of church and state, even this standard of law carries its own ethical standards (look at France and their recent laws on burqa).

President Johnson's personal and home state's views on race and civil rights would have suggested he would assume one position on social progress. Luckily, he took on a more progressive, however fraught with contradiction, view . . . I'm not a historian, but I'd be interested in hearing how Johnson was able to see the federal as trumping states' rights.

Jun. 30 2011 10:44 AM
Robert from NYC

Yes that's what the President did alright, he stood in the grey area, lol, the wussy way out! Often the grey area is a wussy way out, that's why we are the way we are, messed up!

Jun. 30 2011 10:42 AM
Brian from Greenpoint

I am confused as to why the president would lean on the "states' rights" argument, as it invariably translates today into a conservative stance where local citizens snub their noses at the ethical/moral leadership of big government. But isn't there a time/place where the federal government should assume the lead on these kinds of ethical/moral questions? Though we might want to advance secularism as a kind of objective separation of church and state, even this standard of law carries its own ethical standards (look at France and their recent laws on burqa).

President Johnson's personal and home state's views on race and civil rights would have suggested he would assume one position on social progress. Luckily, he took on a more progressive, however fraught with contradiction, view . . . I'm not a historian, but I'd be interested in hearing how Johnson was able to see the federal as trumping states' rights.

Jun. 30 2011 10:41 AM
donna from bklyn

in the 1960s, if state a did not permit interracial marriage, a mixed race couple that got married in state b would still have their marriage recogized in state a and would be considered married for all state, fedeeal and other purposes. the constitution required state a to recognize the validity of a marriage in state b. is this a correct understanding of how conflicting state laws re marriage were interpreted in the past?

Jun. 30 2011 10:40 AM
jm

john from office: regarding your complaint, have you ever heard a child ask, "Why don't we have a 'Kids Day' to go with Mothers Day and Fathers Day?" The answer is always, "Every day is Kids Day."

Jun. 30 2011 10:40 AM
Edward from NJ

How do pro-DOMA groups reconcile it with full faith and credit? Do they have some sort of argument or do they just avoid it? It seems patently unconstitutional on that basis.

Jun. 30 2011 10:40 AM
Brian from Greenpoint

I am confused as to why the president would lean on the "states' rights" argument, as it invariably translates today into a conservative stance where local citizens snub their noses at the ethical/moral leadership of big government. But isn't there a time/place where the federal government should assume the lead on these kinds of ethical/moral questions? Though we might want to advance secularism as a kind of objective separation of church and state, even this standard of law carries its own ethical standards (look at France and their recent laws on burqa).

President Johnson's personal and home state's views on race and civil rights would have suggested he would assume one position on social progress. Luckily, he took on a more progressive, however fraught with contradiction, view . . . I'm not a historian, but I'd be interested in hearing how Johnson was able to see the federal as trumping states' rights.

Jun. 30 2011 10:39 AM
anon from Brooklyn

Given that the federal government handles immigration, as a non-citizen lesbian in NYC, do I have any reason to hope that even if my lover and I could get married, I would be able to legally live with her in this country?
If not, how is this actually marriage equality?

Jun. 30 2011 10:37 AM
Superf88

"marriage is biz of states" please address fed tax breaks for the married

Jun. 30 2011 10:37 AM
john from office

My comments are removed because I am highlighting the constant drumbeat of the WNYC agenda. There are other issues and problems in the world. Most people are not gay and would like to hear other issues. These gay themed segments have been a constant. I have no problems with Gays, I do have a problem with a daily segment or segments on gay issues. The world is more complex.

Jun. 30 2011 10:35 AM
Edward from NJ

Citing states rights is begging the question. The problem is that the Federal government is doing the discrimination. Ok, fine, states can decide on marriage. Then, when a state grants marriages, the federal government should recognize those marriages and provide commensurate benefits and protections.

Jun. 30 2011 10:33 AM
tony from bayside

Either that or the enterprise is under attack by klingons...

Jun. 30 2011 10:32 AM
Susan from nyc

As a 65-year-old straight woman, I am deeply offended that the president stood up for "state's rights" on marriage equality. It cannot have escaped his notice that his parents would have been denied the right to marry in large swaths of the country had his legal standard held sway.

(Previously posted in wrong segment.)

Jun. 30 2011 10:21 AM

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