Culture Wars Spark Flip-Flop On States’ Rights

By Ori Nir

Published January 09, 2004, issue of January 09, 2004.
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WASHINGTON — In a historic about-face in the debate over federalism, conservatives are increasingly attempting to curtail states’ rights over social issuues through congressional legislation and the federal courts, while liberals are arguing for local control on several fronts.

This shift was on full display after the Massachusetts Supreme Court recently ruled in favor of same-sex marriage, with conservatives pushing for congressional legislation or a federal amendment banning such unions and liberals arguing that on this issue state sovereignty should be respected. But the change also has been reflected in other policy debates, including fights over abortion and religious liberty.

At the forefront of this shift has been President Bush, who as a candidate promised to defer to the states on a range of issues, but in office has backed legislation expanding federal influence over education and endorsed a constitutional amendment barring states from recognizing gay marriage. Meanwhile, the Democratic front-runner, former Vermont governor Howard Dean, has hammered Bush on the issue of federalism, pledging to do a better job of respecting the sovereignty of state courts and governments.

Conservatives now “control the levers of power in Washington, and have a clear policy agenda — as well as the tools to implement it,” said Timothy Conlan, a George Mason University professor who studies the relationship between states and the federal government.

“It would take a great deal of self-discipline for them to say: ‘This is the policy we seek, but the way to implement it goes against our philosophy, so therefore we won’t do it,’” Conlan said. “I call it political pragmatism.”

Emily Bazelon, the senior editor at Legal Affairs magazine, calls it “hypocrisy.”

In a scathing article in the Washington Post, she attacked conservatives for trying to use federal legislation — in the drastic form of an amendment to the constitution — to dictate state policy on same-sex marriage. But, other observers said, in the gay-rights debate and on several other fronts liberals have also abandoned their historic position on federalism. “There is plenty of hypocrisy to go around,” said Marc Stern, assistant executive director of the American Jewish Congress.

Cries in defense of “states’ rights” were historically associated with efforts to maintain segregation, and echoed by Republican presidential candidates from Barry Goldwater in 1964 to Bush in 2000. And, under the leadership of Chief Justice William Rehnquist, conservative members of the Supreme Court have often attempted to tip the balance of power back toward the states.

Now, however, with control of all three branches of the federal government, conservatives often seem willing to abandon their previous position on states’ rights.

The amendment that Conservatives are pushing to prohibit gay marriage allows state legislatures to recognize civil unions involving gay and lesbian couples. In a highly unusual step, however, the proposed amendment bars state courts from ruling that their state constitutions require such recognition of civil unions.

On the legislative front, conservatives passed a bill banning the procedure they have branded “partial-birth abortion” that relies on the “commerce clause,” the constitutional provision long utilized by liberals to justify federal jurisdiction on controversial issues. Liberals have promised to take the bill to the Supreme Court, where until now Rehnquist and his ideological allies have limited the applicability of the commerce clause.

Another example underscoring the liberal-conservative switch on federalism is a contentious state-church case, Davey v. Locke, which is awaiting a decision from the Supreme Court. Conservatives are hoping federal justices find that Washington’s state supreme court violated the rights of Joshua Davey, then a student at Northwest College, when it upheld a decision to deny him state scholarship money that he planned to use in the pursuit of a degree in theology.

During recent arguments in front of the Supreme Court, liberal justices appeared sympathetic to the argument that states should have the right to enact stricter levels of state-church separation that mandated by the federal Constitution. At the same time, just as liberals looked to the federal government to protect the civil rights of blacks, conservatives have repeatedly asked the court — in Davey and other cases — to protect them from alleged violations of their religious liberties by state courts and legislatures.

Stern argued that the growing social divide over religion and church-state separation is probably the most significant cause of the shift on federalism, more than the changing political fortunes of Democrats and Republicans.

“If you look at all these issues,” Stern said, “they all come down to the same division” — a debate over the role of religion in public life.

“I have a fair record in bridging gaps between right and left on church-state issues,” Stern added. “I simply can’t do it any more. We have reached a point where differences are so deep, that they are not bridgeable any more. It’s worse than it has been at any time that we can remember, and I’m afraid it is going to get worse.”

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