Wednesday, July 9, 2003

Supreme Court's sodomy ruling: Battle now shifts to the states

By WILLIAM S. MOUNT
Attorney, Pacific Legal Foundation

Unless unconscious or off the planet, you've surely heard the news of the United States Supreme Court's rulings handed down last month in two cases that have already produced a Niagara of comment.

In Grutter v. University of Michigan Law School, Justice Sandra Day O'Connor's ruling for the majority concluded diversity is a sufficiently compelling goal that the law school's race-based admissions preference trumped the strictures of the Equal Protection Clause supposedly guaranteeing that all will be treated equally.

And in Lawrence v. Texas, Justice Anthony Kennedy, writing for the majority with a broad brush, ruled that a Texas law making sodomy a crime was void under the federal Constitution.

My point here is not to take sides in these moral collisions parading as issues of constitutional law, but to suggest the end-game could shift the venue, and with it the focus, of the underlying debates.

The outcome of both decisions could be to move the struggle from Washington, D.C., to the individual states. States like California, whose voters endorsed by a wide margin Proposition 209's prohibition on race-based government action by amending that state's organic law in a 1996 initiative, may now serve as a kind of "virus," spreading to other states as voters express their preferences on the issue through initiatives.

Ward Connerly, the man behind Prop 209, has been quoted as declaring Michigan to be next in the anti-affirmative action cross-hairs. Remember, Justice O'Connor's opinion did not require the University of Michigan to adopt the challenged "diversity" program. It said that, having done so, Michigan's program did not run afoul of the Constitution.

Voters in the individual states remain free, as California's voters were when they approved Prop 209, to express a contrary preference, either at the ballot box or in the legislature.

As for the court's Lawrence decision, Justice Kennedy's reasoning virtually removed the possibility of criminal prosecution, in the name of "sexual liberty." But the plain implication of Lawrence is the possible legalization of same-sex marriage.

That specter not only made Newsweek's cover but was one of the main themes of San Francisco's annual "Gay Pride" event. Such an outcome, should it come to pass, will almost certainly be the result of action by the individual states.

Congress has already set the stage for that engagement, having passed The Defense of Marriage Act permitting the states to refuse to recognize same-sex marriages contracted in other states.

Assuming that provision withstands a constitutional challenge, the question is likely to be whether the Texas legislature or Wyoming lawmakers will choose to align their states with Vermont by permitting homosexual marriages. Or whether they will continue to bar such unions.

Who can doubt that, put to a vote, citizens of Montana likely would prefer a different outcome than citizens of, say, New York?

America, as Chief Justice Salmon Chase famously wrote in 1868, was conceived as "an indestructible Union, composed of indestructible States." If, as recent events in Washington suggest, the debate over affirmative action and same-sex marriage now moves to the individual states, we may witness what has been called "one of the happy incidents of the federal system that a ... courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments ...."

This notion, also known as the "fifty labs" theory of federalism, could scarcely be more timely. Forgotten or unknown to most Americans (a structural implication rather than a constitutional clause) federalism principles are nevertheless Topic A underlying the issues that occupy the chattering classes from coast to coast.

The fate of the physician-assisted suicide initiative twice adopted by Oregon voters? It has been nullified by Attorney General Ashcroft's threat to prosecute any Oregon physician who acts under it.

California's medical-marijuana initiative? Using the same federal Controlled Substances Act, the Justice Department has won federal criminal convictions against those who dispense under it.

Maine's entry into the Medicare prescription drug controversy with its "Maine Rx" program? Another federalist initiative by a state.

In the wake of a deeply divided high court's decisions over matters as momentous as Brown v. Board of Education, it seems all the more fitting that these issues should now "devolve" to the individual states. After all, underlying federalism is the idea that citizens can vote with their feet, choosing the locality that suits their views of how democratic government should (and should not) work.

With hyper-controversial issues like gay marriage and affirmative action on the national front burner, what better time to let American federalism function as it was conceived, not as an anachronism but as 50 heterodox social laboratories competing for citizens' allegiance on fundamental issues of public morality?

[William S. Mount is an attorney with Pacific Legal Foundation (www.pacificlegal.org), and a former staff attorney with the California Supreme Court. PLF is a Sacramento-based public-interest law firm that litigates for limited government.]