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Living With Cultural Federalism

By Ryan Sager

Next week, in what is fast becoming an election-time ritual, the Senate will take up debate of a constitutional amendment to define marriage in the United States as between one man and one woman (no dogs allowed). And, just as predictably, the amendment will fail by a wide margin to garner the necessary two-thirds vote in both houses of Congress.

Thus will Americans continue a great experiment in what has been called "cultural federalism."

Neither party has much in the way of a genuine commitment to the principle of federalism - the idea that many policy decisions are best left to state and local governments - in either economic or social affairs. But in a nation increasingly polarized by hot-button cultural questions, both parties would do well to recognize that in our democracy, living together is often a matter of learning to live apart.

Such recognition may already be creeping into the national consciousness when it comes to gay marriage. While a solid majority of Americans still oppose same-sex marriage (by a margin of 51-39 percent, according to a recent Pew survey), the country is split essentially 50-50 on the idea of writing a ban on gay marriage into the Constitution.

That means that there are millions of Americans who, while ambivalent or opposed to gay marriage personally (at least in their own states), are happy to let what happens in Massachusetts stay in Massachusetts.

Or, as a Gallup report issued earlier this month put it: "About a quarter of those who oppose making gay marriages legally valid (28%) nevertheless oppose a constitutional amendment banning them." Similarly, a poll commissioned by the Human Rights Campaign in April found that 49 percent of Americans favor letting states write their own laws on marriage.

Why this acceptance of a "leave-it-to-the-states" approach?

Perhaps an understanding is emerging in America that, as American Enterprise Institute scholar Michael Greve put it, "You really don't want social policy in the Constitution."

Greve, who mans a lonely outpost in the culture wars as head of AEI's Federalism Project, wrote a paper after the 2000 election calling on Republicans to remember their federalist faith when it comes to issues like abortion and marriage and drugs and guns - a faith forged during a time when liberals controlled the levers of national power - despite the temptations of holding the presidency, Congress and a working majority on the Supreme Court.

Greve called the concept "cultural federalism." Professor Alan Wolfe, director of the Boisi Center for Religion and American Public Life at Boston College, has called it "moral federalism." Republicans in Congress and the White House, however, just call it "Shirley" - as in, "Shirley, you can't be serious."

"The Republican side of it has gone the other way," says Greve, almost six years after writing his paper, pointing to the Terri Schiavo intervention, the all-out battle against state medical-marijuana laws, the marriage amendment and, last but certainly not least, the No Child Left Behind Act (a "signal event" in the GOP's abandonment of federalism, one which people seriously "misunderestimated"). "Whatever commitment there was once to variegation and federalism" in the GOP, Greve says, "has been trampled underfoot."

Democrats, meanwhile, staring down the barrel of three-branch Republican rule in Washington, D.C., have suddenly rediscovered the charm of the state capitals. But just because their commitment to federalism is purely tactical, that doesn't mean it's wrongheaded.

"When people are divided over these things and the world is a mess, the notion that you can sort of pacify interest-group conflict by saying, 'Here's our substantive solution, and it's now in the Constitution,' is just highly idiotic and counterproductive," Greve says.

We've tried it before in America, he points out. The Eighteenth Amendment set a policy on sin for the entire nation; the Twenty-First Amendment was needed to reverse Prohibition, but it didn't legalize alcohol everywhere, it simply sent the matter back to the states. Likewise, Roe vs. Wade has served as a de facto amendment to the Constitution, creating a right to abortion without the consultation of the public, leading to a 30-plus-year standoff with two sides armed to the teeth, waiting - literally - for judgment day.

Attempting to etch a position on gay marriage into the Constitution at a time when Americans' attitudes are radically in flux - and when the divide is along generational lines, meaning the younger generation will want to wash away this ink before it's even dried - is poor statesmanship, plain and simple.

Cultural federalism is harder than federalism in other areas of life. This isn't interstate trucking regulation; it's not even gun control. Some issues just don't have middle grounds. Abortion is legal, or it's not. Gay couples can marry, or they can't.

But by avoiding all-out cultural conflagrations at the national level - by letting smaller, more homogenous states make certain decisions for their own citizens - we can all save ourselves a good amount of hair-pulling and eye-gouging. It can only be healthy for our democracy.

Ryan Sager (rhsager.com) is author of “The Elephant in the Room: Evangelicals, Libertarians, and the Battle to Control the Republican Party.”

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