Invoking States' Rights

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.