Drew Clark: On marriage dispute, the choice for federalism has gone from compromise to opposition viewpoint

Published: Sunday, June 22 2014 12:00 a.m. MDT

That won't be the end of this battle: The matter will simply be returned to state legislatures, which are best suited to make the decision, as well as to governors and attorneys general.

Once it is clear that states do have the right to define marriage within their boundaries, some states will move over to a definition of marriage favored by the three states in which voters have approved gay marriage (Maine, Maryland and Washington), or the eight states (plus the District of Columbia) in which legislators have authorized such marriages. The people of many other states will retain a traditional definition of marriage.

This scenario may be completely at odds with the conventional wisdom. What about California? The storyline of the film "The Case Against [Proposition] 8" revolves around the death by lawsuit of California's voter-approved law defining man-woman marriage. The film tracks Ted Olson and David Boies, attorneys once at odds in representing Bush v. Gore at the Supreme Court, but who joined forces for gay marriage in California. The film culminates with such marriages in San Francisco and Los Angeles.

The problem with this picture is that the Supreme Court simply refused to rule on state marriage laws when state actors wouldn’t defend those laws. The upshot? Many states are indeed defending their laws. Once the high court affirms our nation’s federalism, including state interests in marriage, state attorneys general cannot argue that man-woman marriage is “unconstitutional.”

State-by-state disputes will be messy. But conflicts about fundamental values are best reconciled through politics, and through the mediating institution of federalism.

State legislators should begin thinking now about how they will approach thorny issues of marriage, post-Supreme Court decision. How will legislators protect the free exercise of religion, including the right of businesses and educational institutions not to be coerced into supporting practices (such as same-sex marriage) with which they fundamentally disagree? How will states protect an individual’s legal right to contract with a partner for social benefits? A pluralistic state-by-state solution may not satisfy everyone — in fact, it will completely satisfy no one — but it is the best remedy to tackle what is otherwise intractable.

Drew Clark is opinion editor of the Deseret News.

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