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Federalism is

eralism, states have the opportunity to see

created the appearance of "confusion and

whether such recognition truly has the ill

chaos"; to others, they illustrated the princi-

working on this

effects predicted by opponents.

ple that the people of the states should be

subject. All over

Second, federalism maximizes individual

permitted to govern themselves with mini-

the nation cities

choice and liberty. By allowing states to make

mal federal intrusion.

different policy choices, we leave open the pos-

Repudiating that long history, the FMA

and states are

sibility that citizens can move to states where

would impose on the states a single, nationwide

debating whether

public policy best reflects their preferences and

definition of marriage. It would prohibit state

values. A citizen who highly values low taxes

courts or even state legislatures from authoriz-

to grant some

may choose to live in Mississippi, which spends

ing same-sex marriages. The supporters of the

form of legal

relatively little on public education. But a citi-

FMA freely acknowledge that much. But in

recognition to

zen who highly values a strong system of pub-

addition, it would tell states how to interpret

lic education may choose to live in Minnesota,

their own state constitutions and state statutes

same-sex couples.

a high-tax state that spends proportionately

by prohibiting them from "construing" their

much more than Mississippi on education. A

own laws so as to permit same-sex marriages or

citizen of Massachusetts who strongly opposes

to grant marriagelike benefits to same-sex cou-

gay marriage can also move to Mississippi, for

ples. Although state legislatures might be free to

example, where a large proportion of the pop-

adopt "marriage-lite" institutions like domestic

ulation shares the anti-gay-marriage perspec-

partnerships or civil unions that accord some of

tive. A proponent of gay marriage living in

the benefits of marriage to same-sex couples,

Mississippi can move to a state with a more

those laws might be practically unenforceable in

hospitable public policy environment, such as

state courts. State courts, asked to referee a dis-

California, Connecticut, or Massachusetts. A

pute between the couple and the state over

nationally imposed definition of marriage, by

whether they qualified for benefits under a

contrast, forecloses this opt-out choice by eras-

domestic partnership law, would be prohibited

ing individual state differences.

by the Musgrave and Senate versions of the

Beyond the issue of choice, there is a relat-

FMA from "construing" the law to grant "the

ed point to be made about the role of feder-

legal incidents [of marriage]" to the couple.

alism in maximizing liberty. A constitutional

Purporting to "protect" the states from gay mar-

ban on gay marriage decreases the liberty of

riage, the FMA tramples their historic preroga-

some citizens who want to marry--same-sex

tive to set family policy.

couples--and who would otherwise be able to

Yet federalism is working on this subject. All

marry in some states. Yet, at the same time, a

over the nation cities and states are debating

constitutional ban does not increase the liber-

whether to grant some form of legal recogni-

ty of anyone. The result of anti-federalism on

tion to same-sex couples. States and localities

the marriage issue is a net loss of liberty. By

are trying a variety of approaches, from com-

contrast, allowing states to choose to recog-

plete nonrecognition to recognizing domestic

nize same-sex marriages increases the liberty

partnerships that grant some benefits to rec-

of citizens who want to enter such marriages

ognizing civil unions that grant all of the ben-

without decreasing the liberty of those who do

efits of marriage itself. California, for example,

not want to enter such marriages. The result

has legislatively recognized domestic partner-

of federalism on the marriage issue is a net

ships that include many of the benefits and

protections of marriage.52 Connecticut has leg-

increase of liberty. Individual liberty is not

the only value in our national heritage, and it

islatively created civil unions that grant same-

can be outweighed by other considerations,

sex couples all of the "legal incidents" of mar-

riage.53 These experiments test whether

but liberty is surely a very important and tra-

ditional part of our constitutional and polit-

encouraging stable same-sex unions through

ical order. An approach that takes liberty

some formal legal recognition and support is,

from some without increasing it for others,

on balance, a good or a bad thing. Under fed-

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