Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Federalism and Pluralism

Michael J. Gerson


This piece is a transcript of a radio address composed for the Center for Public Justice and broadcast on KDCR.

The end of the Supreme Court session provided a confusing mix of signals on the issue of same-sex marriage.  In his decision overturning the Defense of Marriage Act, Justice Anthony Kennedy strongly affirmed the right of states to determine marriage laws – a right so strong that their decisions are binding on the federal government.  Kennedy accompanied this decision with a moral lecture, asserting that the only source of opposition to same-sex marriage is bias and a desire to harm.  Kennedy essentially told the states: While the choice is up to you, there is only one valid choice – to approve same-sex marriage. 

Supporters of federalism on the marriage issue avoided the worst outcome – an ambitious, Roe v. Wade-like decision that would have imposed laws permitting same-sex marriage on the 37 states that don’t have them.  But the reasoning of the DOMA ruling – along with a procedural decision that effectively instituted same-sex marriage in California – continued the momentum of gay marriage.  About 30 percent of Americans now live in states that allow same-sex marriage.  

For all the criticisms that can be made of the DOMA ruling, it is a good thing that the court allowed democratic processes to move forward. A court-imposed national solution would have produced a major backlash. Requiring the same marriage law in New York State and Mississippi would be a source of social strife.  Here, Roe v. Wade – which created a nearly unrestricted, national right to abortion – was clearly a cautionary tale.  By short-circuiting democracy on abortion, the court deepened social divisions that have endured for 40 years. On controversial social issues, our political culture is better off when Americans are given a voice. 

But federalism is a form of pluralism.  And pluralism does not lead to clear, universal outcomes.  If democracy is allowed to work on the abortion issue, states will take a variety of different approaches – a point demonstrated by recent efforts to restrict late-term abortions in a dozen state legislatures.  If democracy is allowed to work on the same-sex marriage issue, laws in New York and Mississippi are likely to be different from one another for the foreseeable future.  This means that both sides of the same-sex marriage debate will be forced to live with some outcomes they don’t like.  But if the avenues of democracy remain open, both sides can still advocate and organize for change.  That is the frustration and advantage of self-government.   

In the meantime, a healthy democratic culture requires us to debate with civility; to recognize the sincerity of beliefs we don’t share; and to protect the rights of religious institutions to uphold and act upon their convictions.  In the hardest cases, democratic pluralism is not easy.  But in the hardest cases, it is most needed. 

-         Michael J. Gerson is twice-weekly syndicated columnist for the Washington Post and a Fellow of the Center for Public Justice. 



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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”