President Barack Obama came out Wednesday not only as a
supporter of gay marriage, but also as a Tenther!

No, not really. He did say that
he believes individual states have the right to set their own
policies on recognizing gay marriages. His sudden acknowledgment of
states’ rights certainly comes as a surprise to anybody who has
been following his administration’s abominable behavior with regard
to legalized medical marijuana. Cynicism is perhaps the appropriate
response from any libertarian.

But I’m much more fascinated by the response of the generally
progressive gay and lesbian community to any invocation of states’
rights. Even though pretty much every gain in recognition of gay
marriage has taken place on the state level, the Tenth Amendment is
still frequently seen on the left as an excuse for cranky
right-wing secessionists to try to force schools to teach
creationism. Advice columnist Dan Savage declared Obama’s
transition on gay marriage
not quite complete because of his deference to the states on
actual policies.

In 2010, Judge Joseph Tauro of the federal District Court of
Massachusetts ruled in Massachusetts vs. U.S. Dept. of Health
and Human Services that the federal Defense of Marriage Act
was an unconstitutional violation of the Tenth Amendment (decision
here [pdf]).
In response, Jack Balkin, Knight Professor of Constitutional Law
and the First Amendment at Yale,
warned: “As much as liberals might applaud the result, they
should be aware that the logic of his arguments, taken seriously,
would undermine the constitutionality of wide swaths of federal
regulatory programs and seriously constrict federal regulatory
power.” (This is the part where libertarians yell, “That’s a
feature, not a bug!”)

Balkin believes Tauro’s decision can’t possibly stand, and he
may ultimately be right, given the general deference to federal
authority that has become the hallmark of the Supreme Court.

But you win zero percent of the fights you don’t have. States’
rights have been vital in allowing gay marriage victories, not just
losses. The federal Defense of Marriage Act was signed into law
under President Bill Clinton in 1996, forbidding the federal
government from recognizing same sex marriages. Yet, since the
law’s passage, six states and the District of Columbia have gone on
to allow for legal recognition of gay marriages anyway
(and two others may join them this year). Regardless of federal
law, states are carving out their own language of what constitutes
a marriage (or civil union, or domestic partnership), and this has
resulted in more recognition for gays, not less.

Fighting on the state level for
gay marriage recognition is mandatory because of how slow and
conservative (in temperament, not necessarily political philosophy)
the federal government often is. By the time the Supreme Court
actually struck down anti-miscegenation
laws in 1967, they had already been repealed in all but 17
states. Many states had already struck down sodomy laws by the time
the Supreme Court ruled them unconstitutional in 2003. Even though
four out of five Americans had decided by 2010 that
prohibiting gays from serving openly in the military was
stupid, it took a tremendous amount of political maneuvering to
actually end the Don’t Ask, Don’t Tell policy, and some Republican
presidential candidates swore they would bring it back if elected
in 2012. Federal government is slow. Federal government
doesn’t lead, no matter how much progressives wish it would. It
follows the flow of the public, and so Obama’s “evolution” is not
particularly unusual any more than it is for the rest of America to
be slowly coming around in support as well.

The fear of embracing the Tenth Amendment resides in the
acknowledgment that if a state has the authority to recognize gay
marriage, then it also has the authority to deny it. And thus gay
marriage is an equality issue, a Fifth Amendment and Fourteenth
Amendment issue. It’s not about states’ rights. While ultimately
true (just at it was ultimately true with interracial marriage
bans), the actions on the state level help inform and sharpen the
debate before the federal government. Anti-miscegenation came
before the Supreme Court first in 1883 and the laws were upheld.
Most states had these laws, but they started falling after World
War II. The states led the way to the Supreme Court decision. No,
the Tenth Amendment was not invoked, but it’s hard to imagine the
justices pondering the interracial marriage question if so many
states hadn’t already answered the question for them.

Consider the arguments that will likely be used to defend
California’s Proposition 8 or the Defense of Marriage Act before
the Supreme Court. How many of those arguments regarding the
“compelling state interest” in denying marriage recognition to gays
and lesbians can be countered by virtue of the gains made on the
state level in the past five years? How much harder would it be to
attempt to argue for the federal recognition of gay marriage if no
state had taken the plunge yet?

The gay and lesbian community should not fear states’ rights or
the Tenth Amendment. History has shown that these smaller political
battles are the building bricks that will lead to the national
consensus, and thus the desirable federal outcome.

As for the libertarian position of getting the government out of
the marriage business entirely, well, if that argument is ever
going to lead to political action and not just boilerplate
disclaimers, these gay marriage battles are a precursor. It would
be foolish to believe that the federal government would ever take
the lead in giving up its own authority to formally recognize
marriages. The battle will start with one state and grow from
there.