A Win For Federalism?

Jun 27 2013 @ 1:58pm

That’s how Randy Barnett sees yesterday’s DOMA ruling:

For now, federalism wins out in theory as well as in practice. States are free to define marriage as they wish (subject to Equal Protection and Due Process clause restraints), and the fight over “gay marriage” will continue in the states for years, as other litigation winds its way back to the Court. So far, this process of federalism has been beneficial to the cause of same-sex marriage in a number of respects, not least of which is the perceived legitimacy of same-sex marriage in states where it has been adopted by legislation or popular initiative. But whether this bodes good or ill for same-sex marriage, it is a visible demonstration that federalism need not be just for conservatives.

How Rick Hills feels that federalism on marriage is a mixed blessing:

Well, now that Windsor has given us the gift of federalism with respect to Fifth Amendment rights, should the Left look a gift horse in the mouth? Or should they welcome a little federalism with respect to marriage and family matters?

I think the answer to the question depends on risk aversion and discount rate. If you are a Lefty with a strong stomach for risk, then you should be no friend of federalism: You should favor the winner-take-all, high-stakes game of having the SCOTUS define “basic civil rights” in family matters in hopes that the votes will break your way. If you are a Lefty with a high discount rate, you will also discount future risks that a future SCOTUS will define “basic civil rights” in a conservative direction and try to nationalize your preferred definition of “basic civil rights” right now with the current Court and not worry about whether encouraging judicial creativity about nationalizing rights will injure your interests down the road.

Drum believes that the Justices don’t really care about federalism:

Taken as a whole, this ruling was as pure a defense of federalism as we’ve seen in a while. So why did all the conservative justices oppose it? Answer: Because no one actually cares about federalism. It’s merely a convenient veneer when you prefer one outcome over another.