Unless unconscious or off the

planet, you've surely heard the news of the United States Supreme Court's

rulings handed down last month in two cases that have already produced

a Niagara of comment.

In Grutter v. University of

Michigan Law School, Justice Sandra Day O'Connor's ruling for the majority

concluded diversity is a sufficiently compelling goal that the law school's

race-based admissions preference trumped the strictures of the Equal Protection

Clause supposedly guaranteeing that all will be treated equally.

And in Lawrence v. Texas, Justice

Anthony Kennedy, writing for the majority with a broad brush, ruled that

a Texas law making sodomy a crime was void under the federal Constitution.

My point here is not to take

sides in these moral collisions parading as issues of constitutional law,

but to suggest the end-game could shift the venue, and with it the focus,

of the underlying debates.

The outcome of both decisions

could be to move the struggle from Washington, D.C., to the individual

states. States like California, whose voters endorsed by a wide margin

Proposition 209's prohibition on race-based government action by amending

that state's organic law in a 1996 initiative, may now serve as a kind

of "virus," spreading to other states as voters express their

preferences on the issue through initiatives.

Ward Connerly, the man behind

Prop 209, has been quoted as declaring Michigan to be next in the anti-affirmative

action cross-hairs. Remember, Justice O'Connor's opinion did not require

the University of Michigan to adopt the challenged "diversity"

program. It said that, having done so, Michigan's program did not run

afoul of the Constitution.

Voters in the individual states

remain free, as California's voters were when they approved Prop 209,

to express a contrary preference, either at the ballot box or in the legislature.

As for the court's Lawrence

decision, Justice Kennedy's reasoning virtually removed the possibility

of criminal prosecution, in the name of "sexual liberty." But

the plain implication of Lawrence is the possible legalization of same-sex

marriage.

That specter not only made

Newsweek's cover but was one of the main themes of San Francisco's annual

"Gay Pride" event. Such an outcome, should it come to pass,

will almost certainly be the result of action by the individual states.

Congress has already set the

stage for that engagement, having passed The Defense of Marriage Act permitting

the states to refuse to recognize same-sex marriages contracted in other

states.

Assuming that provision withstands

a constitutional challenge, the question is likely to be whether the Texas

legislature or Wyoming lawmakers will choose to align their states with

Vermont by permitting homosexual marriages. Or whether they will continue

to bar such unions.

Who can doubt that, put to

a vote, citizens of Montana likely would prefer a different outcome than

citizens of, say, New York?

America, as Chief Justice Salmon

Chase famously wrote in 1868, was conceived as "an indestructible

Union, composed of indestructible States." If, as recent events in

Washington suggest, the debate over affirmative action and same-sex marriage

now moves to the individual states, we may witness what has been called

"one of the happy incidents of the federal system that a ... courageous

state may, if its citizens choose, serve as a laboratory; and try novel

social and economic experiments ...."

This notion, also known as

the "fifty labs" theory of federalism, could scarcely be more

timely. Forgotten or unknown to most Americans (a structural implication

rather than a constitutional clause) federalism principles are nevertheless

Topic A underlying the issues that occupy the chattering classes from

coast to coast.

The fate of the physician-assisted

suicide initiative twice adopted by Oregon voters? It has been nullified

who acts under it.

California's medical-marijuana

initiative? Using the same federal Controlled Substances Act, the Justice

Department has won federal criminal convictions against those who dispense

under it.

Maine's entry into the Medicare

prescription drug controversy with its "Maine Rx" program? Another

federalist initiative by a state.

In the wake of a deeply divided

high court's decisions over matters as momentous as Brown v. Board of

Education, it seems all the more fitting that these issues should now

"devolve" to the individual states. After all, underlying federalism

is the idea that citizens can vote with their feet, choosing the locality

that suits their views of how democratic government should (and should

not) work.

With hyper-controversial issues

like gay marriage and affirmative action on the national front burner,

what better time to let American federalism function as it was conceived,

not as an anachronism but as 50 heterodox social laboratories competing

for citizens' allegiance on fundamental issues of public morality?

[William S. Mount is an

attorney with Pacific Legal Foundation (www.pacificlegal.org), and a former

staff attorney with the California Supreme Court. PLF is a Sacramento-based

public-interest law firm that litigates for limited government.]