Same-sex marriage and federalism: Miles's Law wins, again

In an earlier post, I discussed Miles’s Law:  “Where you stand depends on where you sit.” In other words, your opinions tend to change with circumstances. The example in question was the Senate filibuster: Each party has favored it while in the minority but sought to curb it after taking control of the chamber. Recent months have been true to form. Democrats, who lost their majority last fall, have a newfound enthusiasm for the procedure, and some leading Republicans want to stop it. (Majority leader Mitch McConnell is not one of them, mostly because he knows that the next election could make him minority leader McConnell.)

Another example is federalism, which has been much in the news lately. Critics of the Supreme Court’s decision on same-sex marriage say that the justices should have left the matter to the states. A decade ago, however, many of them favored an amendment to the United States Constitution that would have taken the matter away from the states and defined marriage only as the union of a man and a woman.

Opponents of this measure waved the banner of states’ rights. “Family law, indeed, is the purview of the States. So, there’s no need for a constitutional amendment,” said Sen. Dianne Feinstein (D) of California. “This proposed constitutional amendment strikes at the heart of States’ rights in the area of family law, and in doing so, actually undermines our Constitution. Moreover, I believe that Americans believe that the States should deal with same-sex marriage as the States see fit. And so I do.”

The movement for a constitutional amendment gradually lost momentum. Meanwhile, advocates of same-sex marriage went on the offensive, seeking to repeal the 1996 Defense of Marriage Act (DOMA). The law’s supporters claimed that it was a proper exercise of Congress’s constitutional authority, even though the Constitution does not explicitly give Congress any role in this area. Their position was inconsistent, given that many of them cited the absence of constitutional authority as a reason for opposing the Affordable Care Act.

As with the constitutional amendment, DOMA opponents invoked federalism. “Among the steps we have not yet taken is to repeal the Defense of Marriage Act,” said President Obama in 2009. “I believe it's discriminatory, I think it interferes with States' rights, and we will work with Congress to overturn it.”

States courts and legislatures took the initiative to institute same-sex marriage. “I believe in states rights. I would like to see a place where this law is accepted all across the nation. I advocated as such,” said Gov. Andrew Cuomo (D) of New York, who signed a same-sex marriage bill. “I don’t know that the solution should be the federal government telling states what to do.”

In 2012, President Obama finally endorsed same-sex marriage. In an interview with ABC’s Robin Roberts, he framed it as a state issue: “And what you’re seeing is, I think, states working through this issue – in fits and starts, all across the country. Different communities are arriving at different conclusions, at different times. And I think that’s a healthy process and a healthy debate. And I continue to believe that this is an issue that is gonna be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”

As it became increasingly likely that the judiciary would find a constitutional right to same-sex marriage, the two sides switched places on federalism. Opponents of same-sex marriage now invoked the same states’ right argument that supporters had used just a couple of years before.

In his 2015 dissent, Chief Justice Roberts echoed President Obama’s 2012 interview: “The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not.”

Somewhere in the hereafter, Rufus Miles is saying, “I told you so.”

Jack Pitney writes his Looking for Trouble blog exclusively for the Monitor.