The brouhaha over the latest iteration of the Federal Marriage Amendment has stimulated interest in the relationship between federalism and gay rights. Strikingly, gays seem to be an unpopular minority that benefits more from decentralized federalism than from the concentration of power in Washington. Historically, most scholars and commentators have tended to believe that the federal government is a better protector of unpopular minorities than are state and local governments. Obviously, this view owes much to the history of African-Americans, who were twice (in the 1860s and 1960s) rescued from vicious state oppresssion by the feds. I think that this view is an oversimplification of the African-American experience (for some reasons why, see here and here), but there can be no denying the lessons of the Reconstruction and Civil Rights Movement eras.
The gay experience, however, cuts against the traditional view of the relationship between federalism and minority rights. Gays have fared far better in the statehouses and city halls than in Congress and the White House. This trend has persisted under both Democratic and Republican presidents and congresses, and so cannot all be blamed on George W. Bush. Over the last several decades, numerous states and localities have enacted laws protecting gays against discrimination, several states (including Connecticut and California) have enacted civil union laws through their democratic processes, and one (Massachusetts) has adopted gay marriage, though by judicial decision.
By contrast, the few federal interventions in this field have mostly cut against gay interests rather than for them (e.g. - "Don't ask, Don't tell," the Defense of Marriage Act, etc.). To be sure, many state and local governments have historically had antigay policies of various types (most notoriously, antisodomy laws), but the feds did little or nothing to curb such excesses and there is little doubt that if policy towards gays had been under federal control at the time these laws were enacted, gays would not have been treated any more favorably than they were by the states. As Yale Law Professor William Eskridge documents in his book Gaylaw (1999), the federal government in fact has a long history of antigay discrimination as bad or worse as that of the states. Even the belated invalidation of antisodomy laws by the Supreme Court in Lawrence v. Texas came at a time when only 13 states still had such laws and most of them no longer actively enforced them.
Why have gays, contrary to the conventional wisdom, benefited from federalism? Perhaps it is simply random chance or contingent factors. However, in my view there is a deeper logic at work. At an estimated 2 or 3 percent of the population, gays lack the numbers and resources to have a major impact on national politics, especially in comparison to the much greater numbers and resources of their main adversaries, the religious right. As Bruce Ackerman pointed out in a classic Harvard Law Review article (unfortunately unavailable online), gay political influence at the national level is also reduced by the fact that many of them are "in the closet" and are therefore unlikely to engage in pro-gay political activity so long as that is the case.
However, the gay population (at least the openly gay portion thereof) is highly concentrated in major urban areas, such as New York, DC, and San Francisco. In these places, gays are numerous enough to have some clout. This power is accentuated by the fact that gays tend to "vote with their feet" for cities where there is greater tolerance for them on the part of the general population. Thus, gays can succeed politically at the local and state level because 1) they tend to be concentrated in a few specific areas, magnifying their influence, 2) those areas will likely be places where antigay political forces are comparatively weak, and 3) in such relatively tolerant locations, a higher percentage of the already large gay population will be out of the closet and able to participate in pro-gay political action. Moreover, given the important contributions of gays to local economies, local governments seeking to increase tax revenue have at least some incentive to adopt progay policies in order to get a leg up on their competitors.
Although I can't cover them all in this post, there are important lessons here for both the gay rights movement (which should be more wary of the growth of federal power than many of its members seem to be), and for our broader understanding of the relationship between federalism and minority rights.
Related Posts (on one page):
- The amendment is dead, long live the amendment:
- Gays, Federalism, and Minority Rights:
- Video of panel on marriage amendment now available online:
- The New York Times and the federal marriage amendment:
- Bush to retract support for a federal marriage amendment in Monday speech, news report says:
- Is the Federal Marriage Amendment Consistent with Federalism and Democratic Values?
- Another prominent conservative against a federal marriage amendment:
- Is Marriage a Federal Issue?
- Against a constitutional amendment banning gay marriage: