Rights and Risk Aversion: Should the Left Embrace the Gift of Federalism on Marriage and Family?

Back in April, Linda Greenhouse warned liberals to "[b]eware of conservatives bearing gifts" -- in particular, the "gift" of "the discordant music of federalism" on marriage rights. According to Greenhouse, the SCOTUS's holding that the federal government cannot not discriminate against same-sex couples without reaching any conclusion about whether states could so discriminate "is a truly bad idea, and the campaign for marriage equality would be worse off for it." The reason is that "basic civil rights" should not vary state by state: They should be uniform throughout the land. Federalism is just a creepy-crawly thing that "tends to emerge from under the rocks in times of constitutional ferment, when the status quo is cracking and needs some propping up."

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.

I can understand why a high-stakes gambler with an impatient streak would disapprove of federalism with respect to family matters. What I cannot understand is why people like Greenhouse do not seem to appreciate that their urging of rights nationalism is a risky gamble for the causes in which they believe. Nothing in Greenhouse's column shows any awareness that a SCOTUS that felt empowered to define basic civil rights according to their moral lights would not do so in a way that might threaten "basic civil rights" according to Greenhouse's and others on the Left. It is one thing to roll the dice with full awareness that one is taking a risk. It is another thing altogether to do so blithely unaware that the dice could come up snake eyes.

How does federalism provide insurance for the risk-averse citizen, whether Left or Right? The answer, of course, is that, by reserving categories of topics for subnational resolution, federalism reduces the costs of the national government's being captured by one's opponents. Federalism performs this insurance function with basic civil rights as much as with any other topic, because basic civil rights can be a zero-sum game: One's opponents' view of rights might not only be different from, but also might actually violate, one's own conception of rights. Obvious examples come from abortion and religion: A broad definition of fetal rights violates broad definitions of women's rights to choose whether to give birth, while broad definition of free exercise rights violates a broad notion of rights to be free from establishments of religion. But less obvious examples can be drawn from many other contexts where the "Left" version of a right might be vindicated not by courts but by legislatures: Freedom of contract, for instance, can destroy a right to collective bargaining or a living wage.

That judicial creativity with rights can be risky for the Left is especially true with ethnoculturally sensitive issues like family and marriage like parental rights -- for instance, the rights of parents to home-educate their kids with minimal state supervision, the right of parents to administer corporal punishment to their children, the right of parents to stop the use of textbooks in K-12 schools celebrating views of sexuality with which the parents disagree, etc.

One possible response to the risk that the SCOTUS would vindicate these "conservative" rights is denial: One could argue that such conservative claims for such conservative rights are so obviously meritless that they will never prevail nationally before the SCOTUS. Such denial is, I think, the product of a high discount rate: Because SCOTUS is likely to reject such claims right now, one believes that SCOTUS will likely reject them further down the road. Such confidence is, I think, misplaced, as the gradually successful campaign in favor of Second Amendment rights indicates. (The Second Amendment is, by the way, one of those rights that, according to a capacious view of private rights to be free from violence, arguably violates a Left or at least Liberal conception of rights).

By repeatedly hammering home the idea that family and marriage are matters primarily for subnational resolution, opinions like Windsor reenforce a legal culture in which winner-take-all constitutionalism on extremely divisive matters by both the Left and Right is discouraged. It was precisely conservatives' leeriness about nationalizing marriage that led conservatives during the Bush Administration to take the laborious route of trying to outlaw same-sex marriage through a constitutional amendment rather than a federal statute. Indeed, some conservatives even opposed the anti-gay constitutional amendment itself on the theory that the spirit of federalism prohibited such a measure.

Federalism is indeed an ambiguous gift: Like any insurance policy, it exacts a costly "premium" in the form of not getting everything one wants at the national level right when one wants it. The Left should feel absolutely free to decline such insurance on the theory that they do not really need it, because the national government and federal courts will always be on their side.

But before they do, they should at least ask themselves the question: "Do I feel lucky?" And, if like myself, they are risk-averse enough to answer "not always," then they might want to accept that conservative gift of federalism insurance with a bit more enthusiasm.