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Culture Wars Spark Flip-Flop On States' Rights
Forward ^ | 1/9/03 | ORI NIR

Posted on 01/08/2004 1:12:30 PM PST by RJCogburn

In a historic about-face in the debate over federalism, conservatives are increasingly attempting to curtail states' rights over social issuues through congressional legislation and the federal courts, while liberals are arguing for local control on several fronts.

This shift was on full display after the Massachusetts Supreme Court recently ruled in favor of same-sex marriage, with conservatives pushing for congressional legislation or a federal amendment banning such unions and liberals arguing that on this issue state sovereignty should be respected. But the change also has been reflected in other policy debates, including fights over abortion and religious liberty.

At the forefront of this shift has been President Bush, who as a candidate promised to defer to the states on a range of issues, but in office has backed legislation expanding federal influence over education and endorsed a constitutional amendment barring states from recognizing gay marriage. Meanwhile, the Democratic front-runner, former Vermont governor Howard Dean, has hammered Bush on the issue of federalism, pledging to do a better job of respecting the sovereignty of state courts and governments.

Conservatives now "control the levers of power in Washington, and have a clear policy agenda — as well as the tools to implement it," said Timothy Conlan, a George Mason University professor who studies the relationship between states and the federal government.

"It would take a great deal of self-discipline for them to say: 'This is the policy we seek, but the way to implement it goes against our philosophy, so therefore we won't do it,'" Conlan said. "I call it political pragmatism."

Emily Bazelon, the senior editor at Legal Affairs magazine, calls it "hypocrisy."

In a scathing article in the Washington Post, she attacked conservatives for trying to use federal legislation — in the drastic form of an amendment to the constitution — to dictate state policy on same-sex marriage. But, other observers said, in the gay-rights debate and on several other fronts liberals have also abandoned their historic position on federalism. "There is plenty of hypocrisy to go around," said Marc Stern, assistant executive director of the American Jewish Congress.

Cries in defense of "states' rights" were historically associated with efforts to maintain segregation, and echoed by Republican presidential candidates from Barry Goldwater in 1964 to Bush in 2000. And, under the leadership of Chief Justice William Rehnquist, conservative members of the Supreme Court have often attempted to tip the balance of power back toward the states.

Now, however, with control of all three branches of the federal government, conservatives often seem willing to abandon their previous position on states' rights.

The amendment that Conservatives are pushing to prohibit gay marriage allows state legislatures to recognize civil unions involving gay and lesbian couples. In a highly unusual step, however, the proposed amendment bars state courts from ruling that their state constitutions require such recognition of civil unions.

On the legislative front, conservatives passed a bill banning the procedure they have branded "partial-birth abortion" that relies on the "commerce clause," the constitutional provision long utilized by liberals to justify federal jurisdiction on controversial issues. Liberals have promised to take the bill to the Supreme Court, where until now Rehnquist and his ideological allies have limited the applicability of the commerce clause.

Another example underscoring the liberal-conservative switch on federalism is a contentious state-church case, Davey v. Locke, which is awaiting a decision from the Supreme Court. Conservatives are hoping federal justices find that Washington's state supreme court violated the rights of Joshua Davey, then a student at Northwest College, when it upheld a decision to deny him state scholarship money that he planned to use in the pursuit of a degree in theology.

During recent arguments in front of the Supreme Court, liberal justices appeared sympathetic to the argument that states should have the right to enact stricter levels of state-church separation that mandated by the federal Constitution. At the same time, just as liberals looked to the federal government to protect the civil rights of blacks, conservatives have repeatedly asked the court — in Davey and other cases — to protect them from alleged violations of their religious liberties by state courts and legislatures.

Stern argued that the growing social divide over religion and church-state separation is probably the most significant cause of the shift on federalism, more than the changing political fortunes of Democrats and Republicans.

"If you look at all these issues," Stern said, "they all come down to the same division" — a debate over the role of religion in public life.

"I have a fair record in bridging gaps between right and left on church-state issues," Stern added. "I simply can't do it any more. We have reached a point where differences are so deep, that they are not bridgeable any more. It's worse than it has been at any time that we can remember, and I'm afraid it is going to get worse."


TOPICS: Constitution/Conservatism; Culture/Society; Government
KEYWORDS: federalism; gaymarriage; statesrights
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1 posted on 01/08/2004 1:12:31 PM PST by RJCogburn
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To: RJCogburn
It is kind of funny, isn't it? I've noticed for a while that many conservatives don't mind trampling on several of the first 10 Amendments when it comes to their pet causes. Are these conservatives just the flip side of the liberal coin?
2 posted on 01/08/2004 1:17:49 PM PST by antiRepublicrat
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3 posted on 01/08/2004 1:20:02 PM PST by Support Free Republic (I'd rather be sleeping. Let's get this over with so I can go back to sleep!)
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To: RJCogburn
bttt
4 posted on 01/08/2004 1:23:29 PM PST by ellery
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To: antiRepublicrat
It is kind of funny, isn't it? I've noticed for a while that many conservatives don't mind trampling on several of the first 10 Amendments when it comes to their pet causes. Are these conservatives just the flip side of the liberal coin?

Can be. You have conservatives who believe in Constitutional principles over all else, and you have conservatives who believe in social engineering to counteract the opponent social engineering.
5 posted on 01/08/2004 1:24:38 PM PST by Arkinsaw
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To: antiRepublicrat
I've noticed for a while that many conservatives don't mind trampling on several of the first 10 Amendments when it comes to their pet causes.

Social conservatives/political liberals. The end justifies the means.

6 posted on 01/08/2004 1:27:46 PM PST by tacticalogic (Controlled application of force is the sincerest form of communication.)
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To: Arkinsaw
You have conservatives who believe in Constitutional principles over all else, and you have conservatives who believe in social engineering to counteract the opponent social engineering.

Ultimately, if they believe in social engineering, wouldn't the latter just be liberals with different pet causes?
7 posted on 01/08/2004 1:28:08 PM PST by augggh (proud lurker since 2000!)
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To: antiRepublicrat
If states should have the right to outlaw abortion and sodomy, should states also have the rights to make marriage available for any kind of union?

I'll have to work on that one.

8 posted on 01/08/2004 1:28:33 PM PST by expat_panama
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To: antiRepublicrat
Q: "Are these conservatives just the flip side of the liberal coin?"

A: Yes, both are philosophical hoes, just walking on different sides of the street.

9 posted on 01/08/2004 1:29:34 PM PST by John Beresford Tipton
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To: RJCogburn
Hogwash. The FMA will secure federalism on this issue by banning Judges from legislating from the bench. Other than protecting the word "marriage," which is already taken, everything else is up for grabs by state legislatures.

But why should the truth get in the way of a good argument?

10 posted on 01/08/2004 1:32:54 PM PST by King Black Robe (With freedom of religion and speech now abridged, it is time to go after the press.)
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To: antiRepublicrat
I think part of this is a result of Americans' attempt to fit a boatload of political issues and positions into two parties. At the very least, there are two major political axes -- Left/Right and Libertarian/Authoritarian. Both leftists and rightists accuse each other of authoritarian behavior.

For example, Joe Lieberman and John Ashcroft are on opposite sides of the left/right axis, but are both authoritarians.

And here's another one that really threw me for a loop -- when I read Free Republic's mission statement, I agreed with 85%-90% of it, yet I disagree with most of the positions represented in these forums.

The "liberal/conservative" dichotomy can't contain the entirety of American political discourse.
11 posted on 01/08/2004 1:38:12 PM PST by Robson
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To: antiRepublicrat
The flaw in the theory is that Republicans aren't so much battling state populations or legislatures as state courts that impose decisions on states and their governments. There would be a serious conflict if a state decided on its own for gay marriage. Consistency might make some Republicans or conservatives, or federalists support marriages between persons of the same sex, but given the way things are, they are justified in opposing court-mandated gay marriage.

So far, no state has wanted "gay marriage" or opted for civil unions without court prodding, so I don't see any glaring contradiction among conservatives. To be sure, this may change in the future.

Is "domestic partnership" marriage, though? There may be plenty of wiggle room between accepting another state's "domestic partnership" or "civil union" laws and instituting "gay marriage."

12 posted on 01/08/2004 1:39:25 PM PST by x
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To: expat_panama
If states should have the right to outlaw abortion and sodomy, should states also have the rights to make marriage available for any kind of union?

Tough one for a neocon, huh? It's not tough if you believe in enduring states' rights above current hot-topic issues that come and go. As long as no clear constitutional right is being violated (as was the case in the Jim Crow days), the feds should stay out of state business.

13 posted on 01/08/2004 1:42:12 PM PST by antiRepublicrat
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To: x
so I don't see any glaring contradiction among conservatives.

That's just one issue. Many conservatives also support other violations of states' rights, like the federal drug laws.

14 posted on 01/08/2004 1:50:47 PM PST by antiRepublicrat
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To: antiRepublicrat
That's because, while they LOOK like Conservatives, they THINK like Statists. When you blend the Right Wing with Statism, you get a predictable and all-too-familiar result: Fascism.
15 posted on 01/08/2004 1:56:40 PM PST by Salgak (don't mind me: the orbital mind control lasers are making me write this. . .)
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To: Salgak
That's because, while they LOOK like Conservatives, they THINK like Statists. When you blend the Right Wing with Statism, you get a predictable and all-too-familiar result: Fascism.

Nice summation.

16 posted on 01/08/2004 2:04:32 PM PST by antiRepublicrat
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To: RJCogburn
bump
17 posted on 01/08/2004 2:06:51 PM PST by Land of the Free 04
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To: Salgak
NO when you blend the LEFT Wing globalists with the federal government you get fascism. This is a more accurate assessment of the current disfunction of America.
18 posted on 01/08/2004 2:13:33 PM PST by hedgetrimmer
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To: antiRepublicrat
Funny you take the effort to come on to a conservative forum to bash conservatives. Don't you know that social humilation and name calling is a technique that the fascists in Italy used to force their system on the public? It stifles public debate. Is that what you are trying to do?
19 posted on 01/08/2004 2:15:44 PM PST by hedgetrimmer
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To: hedgetrimmer
Don't you know that social humilation and name calling is a technique that the fascists in Italy used to force their system on the public? It stifles public debate. Is that what you are trying to do?

I just agreed to a very logically laid out conclusion. If you accept that those conservatives who espouse the ultimate power of federal government to override every aspect of the government of the states can be labelled statist (I do), and if you accept that many conservatives are what you would call "right wing" socially (many are), then the conclusion that they are facist in nature is a sound one.

20 posted on 01/08/2004 2:23:45 PM PST by antiRepublicrat
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