At Liberty Law Blog, two interesting posts from John McGinnis, who is sympathetic to same-sex marriage but doubtful about the Court imposing it:
Federalism as a Catalyst for Beneficial Social Change
Might the Court’s Denial of a Right to Same-Sex Marriage Advance Liberty
From the former:
Today views appear to be changing quickly about same-sex relations and same-sex marriage. Federalism is enabling that change. Many states are permitting same-sex marriage to reflect the sentiments of their people. Other states are permitting civil unions. These states provide demonstration projects that will permit social scientists as well as citizens of other states to evaluate their effects. If they are not adverse, more and more states will adopt same-sex marriage. There may be holdouts, but these will come under pressure from many of their own citizens and of businesses to change their laws so that they can attract the widest pool of talent.
One still might ask what is gained by preferring this federalist method of social change. The most important advantage is that it provides a better screen for beneficial social change than the decisions of a bare majority of Supreme Court justices. While on balance I support same-sex marriage as a policy matter, I recognize that I could be wrong. One does not lightly discard one of the universally defining features of an institution that has been around for thousands of years.
The federalist method of social change puts a a break on too hasty decisions about such matters. It allows for sober second thoughts as new information becomes available to evaluate the effects of new rights. Another advantage is that federalism protects the sense of citizens that they are entitled themselves to debate and deliberate on new moral issues, thus providing buy-in for new social arrangements.
To be sure, because of federalism some same-sex couples may not be able to marry in their chosen jurisdiction. But yet another advantage of federalism is that these couples can choose a jurisdiction that permits same-sex marriage. One of the great virtues of our current federal constitution is that it permits all citizens to exit their state’s jurisdiction. The appropriate scope of freedom for some may indeed prove a straightjacket for others. Decentralized social ordering in a republic with federal guarantees of freedom of movement helps reconcile citizens of different moral intuitions.
Posted at 6:35 AM