February 18, 2004

It's a Mess: Important and Utterly Ignored

Evan Kirchhoff's latest response on the San Francisco gay marriage circus includes this gem:

I don't find the "it's a mess" objection to be compelling, since it amounts to a generic objection to the federalist system as a whole.

The converse objection is that, in spite of various state legislatures resolving not to recognize the gay marriages of other states, gay marriage in one state will inexorably propagate to other states. But if that's the case, then we don't actually have a federalist system (with latitude for local experiments, etc.) after all, but rather some kind of broken hybrid that collapses at the first sign of substantive interstate disagreement. If so, this issue reduces to a zero-sum fight for American gay marriage everywhere or nowhere, and we all need to choose up sides accordingly. This might turn out to be true -- but it would hardly be Gavin Newsom's fault.

Actually, there are all sorts of interstate initiatives that provide for the reconciliation of state laws where things spill over across borders. There are regional, ideological, and national governor's associations, for example. There is a Uniform Commercial Code (UCC) for example that enhances the ability to do multi-state business.

When the goal is to create a consensus, people go through these multi-state bodies and try to work out how to present a skeleton, a set of basic items that each state can adopt and add on its own flourishes as it chooses, leaving the basics consistent between states. Clearly, the method adopted by gay activists is not a consensus based pro-consistency approach.

The problem is that by doing an end run around the entire machinery of democratic governance, the policy outcomes are going to be haphazard and a mess for decades. Screwing up marriage screws up a lot of lives and the people deserve better than some half-baked patchwork.

So, in the end, we do have a federal system and states can experiment. But there are costs to that experimentation and such experiments need to be evaluated with the failures mercy killed and the successes exported. We've got an entire national infrastructure for working this type of problem out over time through legislative and executive action. The judiciary sort of follows on at the end of the process.

So, can we just dump this entire machinery overboard? Sure, there's nothing except practicality and good policy results that we're sacrificing. Oh, and likely we're sacrificing a bunch of other things but we can't be bothered to even count up the cost. We're all in a rush and we needn't confuse ourselves with facts.

Posted by TMLutas at February 18, 2004 01:32 PM