There are at least two very different visions of what America ought to be, and they increasingly appear to be mutually exclusive.
The question of whether there is a federal constitutional right to same-sex marriage is essentially a debate about whether judges need to update the Constitution to keep step with changing times. Justice Anthony Kennedy appears to be the pivotal vote on the issue. One observer yesterday summarized what he takes to be the lesson of his previous opinions on rights: Kennedy “believes that each generation has the right to conceive of newer and broader forms of liberty that merit constitutional protection. He sees history as a guide but not a straitjacket.”
There is no doubt that each generation has the right to conceive of newer and broader forms of liberty. But it does not follow that federal judges should determine what those are. As Mike Rappaport and I have noted, the Constitution accommodates social change through features other than judicial updating. The most important such method is federalism. The states themselves have few restrictions on their powers. Their experiments to address social change can be readily adopted by other states in a continental republic with a free press.
Federalism in the modern era has been a great catalyst for freedoms. For instance, take sexual freedom. Individuals went to tolerant jurisdictions, like New York City and San Francisco, and there showed through both writing and action that society could tolerate diverse sexual mores without disorder. These actions had a much greater effect on changing sexual mores than the decisions of the Supreme Court. After all, Supreme Court decisions could eliminate laws, but they could not change social norms. It is a diverse continental republic and freedom of speech that facilitated changes in traditional morality and the norms and laws that enforced it.
Today views appear to be changing quickly about same-sex relations and same-sex marriage. Federalism is enabling that change. Many states are permitting same-sex marriage to reflect the sentiments of their people. Other states are permitting civil unions. These states provide demonstration projects that will permit social scientists as well as citizens of other states to evaluate their effects. If they are not adverse, more and more states will adopt same-sex marriage. There may be holdouts, but these will come under pressure from many of their own citizens and of businesses to change their laws so that they can attract the widest pool of talent.
One still might ask what is gained by preferring this federalist method of social change. The most important advantage is that it provides a better screen for beneficial social change than the decisions of a bare majority of Supreme Court justices. While on balance I support same-sex marriage as a policy matter, I recognize that I could be wrong. One does not lightly discard one of the universally defining features of an institution that has been around for thousands of years.
The federalist method of social change puts a a break on too hasty decisions about such matters. It allows for sober second thoughts as new information becomes available to evaluate the effects of new rights. Another advantage is that federalism protects the sense of citizens that they are entitled themselves to debate and deliberate on new moral issues, thus providing buy-in for new social arrangements.
To be sure, because of federalism some same-sex couples may not be able to marry in their chosen jurisdiction. But yet another advantage of federalism is that these couples can choose a jurisdiction that permits same-sex marriage. One of the great virtues of our current federal constitution is that it permits all citizens to exit their state’s jurisdiction. The appropriate scope of freedom for some may indeed prove a straightjacket for others. Decentralized social ordering in a republic with federal guarantees of freedom of movement helps reconcile citizens of different moral intuitions.