Federalism, Same-Sex Marriage, and Abortion

At the Los Angeles Times, Mark Z. Barabak writes of tension in Republican ranks between support of decentralized government and opposition to abortion and same-sex marriage. One example is Texas Governor Rick Perry:

A tea party favorite, Perry frequently cites the importance of the Constitution's 10th Amendment — holy writ to small-government advocates — which was intended to limit the powers of Washington in favor of the states. (Many proponents prefer to speak of state sovereignty rather than the more freighted term states' rights, which was invoked across the segregated South in opposition to the civil rights movement.)

Perry's recent troubles began with a speech to GOP donors at an Aspen Institute forum in Colorado.

"Our friends in New York six weeks ago passed a statute that said marriage can be between two people of the same sex. And you know what? That's New York and that's their business and that's fine with me," Perry said to applause. "That is their call. If you believe in the 10th Amendment, stay out of their business."

Days later, speaking to reporters in Houston, Perry took a similar stance on abortion, saying that if Roe vs. Wade, the Supreme Court decision legalizing abortion, were overturned, it would be up to states to set their laws regarding the procedure.

The remarks quickly circulated among social conservatives, many of whom took deep umbrage.
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Perry soon backed off his comment on same-sex marriage. In a radio interview with Tony Perkins of the Family Research Council, a conservative advocacy group, Perry said, "I probably needed to add a few words after that 'it's fine with me.' "

As we note in our textbook, there is a flip side: liberals who embrace states' rights on these issues. Nearly sixty years after Hubert Humphrey implored Democrats to "get out of the shadow of states' rights," Senator Dianne Feinstein invoked the term to oppose a federal ban on same-sex marriage. As the textbook puts it:

Like many other Democrats, she saw the proposal as a threat to civil rights.

Unlike Humphrey, she found virtue in states’ rights. The ban, she said, “strikes

at the heart of states’ rights in the area of family law and, in doing so, it actually

undermines our Constitution. Moreover, I believe Americans believe the states

should deal with same-sex marriage as the states see fit. And so do I.”

President Obama has also used the term:

• From a statement of administration policy opposing an appropriations bill: "Section 810 of the bill prevents the District of Columbia from using its own funds for abortions, which undermines the principle of states' rights and of D.C. home rule."
• From remarks on signing a memorandum on non-discrimination: "Among the steps we have not yet taken is to repeal the Defense of Marriage Act. I believe it's discriminatory, I think it interferes with states' rights, and we will work with Congress to overturn it."