As the past week’s Democratic debates in Los Angeles and New York showed once again, there are generally very few substantive policy disagreements between John Kerry and John Edwards. On the issue of same-sex marriage in particular, there is very little difference in their approach: play it safe. That may be politically expedient and even politically necessary, but unfortunately, it also dangerous to the cause of personal liberty.

Unlike abortion rights, which enjoy consensus support nationwide, same-sex marriage is still opposed by a majority of Americans, even in California and Massachusetts. In response to President Bush’s aggressive posture in support of a constitutional amendment banning same-sex marriage, Edwards and Kerry share a similar line. Each says he favors civil unions, but is personally opposed to gay marriage. Both men are also opposed to a prohibition in the U.S. Constitution. (Kerry, who voted against the 1996 Defense of Marriage Act (DOMA), would support a state constitutional ban in his home state of Massachusetts, provided civil union status is incorporated). Ultimately, each says it is a matter to be left to the states.

This may be smart politics in 2004, but unfortunately it’s bad public policy. The states, of course, have traditionally regulated marriage, marital eligibility, age of consent, adoption and other family issues. But the states’ record of recognizing and protecting individual rights and personal privacy, however, is not a happy one. From slavery and Jim Crow segregation to voting rights and the most private of sexual choices, state constitutions and legislatures have trampled on the core rights of racial, ethnic and other minorities. Supreme Court rulings in cases such as Dred Scott (1857) and Plessy v. Ferguson (1896) are a stain on the American ideals of human freedom and equality that took a bloody civil war and a hundred year civil rights struggle to overcome.

Democrats such as John Kerry and John Edwards who seek to protect the equal rights of gay and lesbian Americans should recognize the contours of this debate and its legal trajectory. We’ve been here before in the battle over abortion and reproductive rights. Deferring to states’ rights is not only a potentially fatal obstacle to the marital and legal status of gay citizens; it threatens the hard-won reproductive rights of women as well. Either a given right is fundamental, constitutionally protected and transportable across state lines, or it is not.

1. States' Blights:  Introduction
2. Here Comes the Judge
3. Public Acts, Compelling State Interest, and the Santorum "Man on Dog" Test
4. What is to be Done?  A Measured Approach for 2004