Social Issues Challenge State-Federal Relationship

A customer smokes marijuana legally at a club in Denver on New Year's Eve. (AP)

See: State of the States 2013

When the Supreme Court convenes to hear same-sex marriage arguments this spring, it will confront a landmark civil rights case with societal and constitutional implications that could reverberate for years to come.

But underlying the questions at stake will be even more far-reaching issues, ones that reflect the evolving relationships between Washington and the states and among the states themselves. In judging the rights of individuals to marry, the court could also wade into the very concept of states’ rights, and what that idea means for a federal government increasingly under siege by state lawmakers across the country.

Nationwide, states have been bounding ahead of — and directly challenging — the federal government with growing tenacity, setting up a collision course with Washington on issues from same-sex marriage and drug policy to immigration and abortion. Marriage has provided the most high-profile arguments thus far. But votes last November legalizing marijuana in Washington State and Colorado promise to provide more as states continue to chart their own paths and confront the federal government.

The subject is nothing new: Disputes about federalism predate the United States itself. The 10th amendment to the Constitution gives the states latitude to act on all matters not specifically assigned to the federal government. Its meaning has been debated almost endlessly since the amendment was written. Many crucial changes in national policy, such as prohibition and Progressive-era business regulation, started as state initiatives that eventually forced change at the federal level.

But the current situation is set apart by persistence, efficacy and volume. States are more politically polarized than they’ve been in decades, with single-party control in most of them and legislators free to enact their agendas on many fronts. Lawmakers and activists across the political spectrum have seized on federalism with legal and technical sophistication to achieve their policy goals.

In the process, states have been reaffirmed as laboratories of democracy and laboratories for social change. But the most recent challenges could also force Washington to adapt in extraordinary ways, overturning some existing laws despite objections of state legislators and voters alike.

“The states are going to be in different places, and in different places than the national government,” says Paul Posner, a professor of public policy at George Mason University. “There are going to be huge wedges driving differences between states and the federal government. And states themselves.”

States vs. Washington, States vs. States

See Stateline Infographic: Gay Marriage and Marijuana Legislation Divides States. More than two dozen states still ban same-sex marriage, but millions of gays have gained the right to marry. Two states allow the use of marijuana for recreation, while federal law forbids it.

Some see in marijuana policy and same-sex marriage the greatest potential for conflict, and for expanded tensions. Whether marriages performed in one state need to be recognized in another, or how liberalized state drug laws apply when they conflict with federal law, are open questions with no easy answers. As liberal states go in one direction and conservative states another, it may be increasingly difficult to reconcile the differences.

“We have a big country, and states are diverse,” says Samuel Bagenstos, a professor of law at the University of Michigan who served in the Justice Department’s Civil Rights Division. “The real question is what the equilibrium is going to be on these issues.”

Finding that equilibrium could provide the greatest conflict. The debate so far has left a patchwork of policies, likely to continue in the interim. But eventually, the conflict could force a reckoning, with major policy changes both in Washington and in the states.

Same-Sex Marriage in Court

The current focus of the conflict is the Supreme Court, where a pair of cases dealing with same-sex marriage is likely to be decided by June against a backdrop of recent victories for gay rights supporters in some states and intractable opposition in others.

The two cases deal with same-sex marriage in different ways. One involves a challenge to California’s prohibition on same-sex marriage, the voter-approved Proposition 8. The other contests the federal Defense of Marriage Act, or DOMA, as it’s known. That act defines marriage as being the union of a man and woman and denies federal benefits to same-sex couples regardless of their marital status in the state where they live.

Of course, the court could decide that both DOMA and Proposition 8 are constitutional, essentially preserving the states-rights status quo for the time being. But many legal observers are predicting a more dramatic outcome.

What may be most important is whether the court chooses to decide these cases on broad grounds or narrow ones. In the California challenge, for example, the court could reaffirm a lower court decision striking down Proposition 8, a ruling that would legalize same-sex marriages in California without allowing them elsewhere.

But the court could also “go big,” as some have called it. The justices could find Proposition 8 unconstitutional and rule that all similar bans are also unconstitutional. That decision would presumably strike down DOMA as well, establishing a national right to same-sex marriage.

While the latter example is significantly more sweeping, even narrow victories for same-sex marriage advocates would underscore the power states wield over the federal government and each other.

Jason Mazzone, a professor at the University of Illinois law school, says a ruling against DOMA on narrow grounds would still represent a significant shift, striking down a federal law and forcing Washington to adapt to changes in the states. In effect, he says, it would challenge the constitutional principle that federal law trumps state law.

And while a narrow ruling against the federal DOMA law would allow existing state bans on same-sex marriage to stand, those laws would then be challenged under what would be a new two-tiered marriage scheme. As some advocates see it, allowing states to refuse to recognize couples married elsewhere is just as discriminatory as a federal law doing the same thing. While that question isn’t before the Supreme Court now, most say it’s a matter of time before it will be.

That isn’t lost on advocates of same-sex marriage, who are already eyeing marriage reciprocity among the states.

There have been increasing efforts to force reciprocity for same-sex marriages, even so-called “proxy marriages” where a couple marries in any state they choose — perhaps via the Internet. Mae Kuykendall, a law professor at Michigan State, has been a leading proponent of this strategy. And as she sees it, with same-sex marriage advancing, it’s only a matter of time before differences among states force broad changes elsewhere.

“It’s not possible to confine social change within the state borders,” she says. “When the culture changes, it spreads all over the country.”

Marijuana: An Emerging Front

Social Policy Hotspots

The conflict surrounding marijuana policy is equally contentious. Starting with California’s legalization of medical marijuana in 1996 and continuing through last year’s legalization of the drug for recreational use in Washington and Colorado, federal and state policy have been on diverging paths for close to two decades. The federal government considers marijuana an illegal drug — period.

But where same-sex marriage has found its way to the courts, for the most part differences over drug policy have been handled administratively, with the federal government tolerating a variety of state policies on a temporary basis.

The absence of monumental court fights, however, hasn’t made the emerging conflict any less consequential. And with full legalization a reality in two states, the Obama administration will be under increasing pressure to react in a more formal way.

The ultimate response will prove significant not only for the states but for a federal government that has invested billions in a decades-long “War on Drugs” based on principles being undermined by states around the country.

So far, the Obama administration has shown little interest in prosecuting marijuana users in states that are out of compliance with federal regulations. President Obama has said the Justice Department will not expend scarce resources cracking down on users in Washington and Colorado or anywhere else. That stance, plus the implicit tolerance of medical marijuana systems in a dozen states around the country, is the extension of a trend Gillian Metzger, a professor at Columbia University’s law school, calls “administrative federalism.”

“It’s always been a reality of our system that states have disagreed on policy issues, and those differing views often affect the direction the federal government takes,” she says. “That has meant more willingness to tolerate disuniformity.” At the same time, there have been reports that the Justice Department may sue to block the legalization laws.

Recent movements aside, though, vast policy differences will remain. The many states that oppose legalized marijuana are not going to change their minds based on the 2012 ballot measures. Neither will Congress. Still, many doubt how long the détente can stand, particularly if legalization and decriminalization continue to spread.

Abortion: A Familiar Strategy

As significant as the recent victories have been for the political left on same-sex marriage and marijuana, activists on the right have been scoring triumphs through similar means for decades. And as liberals in Democratic states continue to chart a course to the left, conservative activists challenging the federal government in Republican states show no sign of slowing down.

Abortion policy has been a key elementin this strategy since the Supreme Court’s 1973 decision in Roe v. Wade, which established a right to abortion and struck down state bans around the country. Immigration has recently emerged as another flashpoint where activists have pursued a hard line, challenging Washington in multiple ways. Conservative arguments against the size and scope of the federal government have been a central tenet of the Tea Party movement for the past several years.

A record number of laws restricting the practice of abortion have been passed since the 2010 Republican wave swept the party into control in many states. In 2011, 92 abortion-restricting laws were enacted in states around the country, well more than double the number for any year going back to the 1980s, according to a report from the Guttmacher Institute, a research organization that supports abortion rights. In 2012, 43 were enacted – a significant decrease, but still many more than in any year except the one immediately preceding.

The provisions vary in type and scope: Some have targeted abortion providers and insurance coverage, while others look to require additional procedures, such as ultrasound, before an abortion. In Mississippi, a 2012 law has threatened to close the state’s only abortion clinic by enacting strict licensing requirements on doctors who work there.

But for all the variations, the laws share two goals: Restricting abortion as much as possible under current law, and spawning lawsuits that might force the Supreme Court to reconsider Roe v. Wade.

So far, activists have succeeded with the first goal, but not the second, although it may be only a matter of time. Many states have considered measures to ban abortion 20 weeks or fewer after fertilization, moves that may conflict with Supreme Court rulings.

“The ingenuity on these requirements is impressive,” Columbia’s Metzger says. “They aren’t direct attacks.”

But while abortion opposition in the states may be following a somewhat roundabout route, immigration hard-liners have pursued a direct assault, enacting strict laws to crack down on illegal immigrants, causing Congress to tackle a divisive issue and pressuring federal law enforcement officials to take a harder line.

Like other federalism activists, those pushing the immigration issue have found a mixture of success and failure. The toughest aspects of laws in Arizona and Alabama have been blocked in court, while other provisions have proceeded. But they all have vaulted immigration onto the national agenda and staked out a hard line for a few states in the debate. Enacting a comprehensive new immigration law is a top priority for President Obama’s second term.

‘Right in the Middle of the Fight’

See Stateline's 13th annual State of the States report on key issues, with a particular emphasis on the relationship between states and the federal government.

As much as the political dynamics will shift, it’s the fight over supremacy, authority and jurisdiction that will shape the future for the states and the country in the years ahead.

Marijuana, abortion, immigration and same-sex marriage are just a few issues on which states have taken a different path from Washington. With many other pressure points forming, tension and conflict will grow in 2013 and years to come.

“The states here look like they’re at the front of a national wave on some of these issues,” the University of Michigan’s Bagenstos says. “But on a lot of substantive issues, and at the point in history where we are, there’s a fight. We’re still right in the middle of the fight.”

See: State of the States 2013


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