The Senate is expected to take up the issue of a federal constitutional amendment to ban gay marriage in early June. The sublime Jon Rauch has a new column in the National Journal arguing against the amendment. The upshot, argues Rauch: the threat of judicial activism has been oversold, the states are addressing the issue on their own in a variety of ways, and the predicted chaos arising from discordant state approaches has not arrived. In other words, federalism is working.
The case for a federal marriage amendment is even weaker now than it was in 2004, also a national election year, when the Senate last voted on this issue. Nevertheless, we seem fated to have this discussion every two years in Congress.
Coming soon: my new white paper for Cato against the amendment.
Some of the biggest supporters of the gay marriage ban in the Virginia State Senate were also big supporters of increasing taxes. These senators sought to use a social wedge issue to cover up their betrayal of the principles of limited government that elected two Republican governors in a row.
It didn't help them at the polls.
1) Expanding personal rights/sufferage - or, in reverse, restricting the power of goverment to affect people's lives in certain fundamental ways (e.g. Amd. I, IV, XIV, XIX, etc.);
2) Restructuring/clarifying the relationship between the federal government and the states, or between the federal branches (e.g. Amd. X, XI, XIV, etc.);
3) Reworking elections/rules for succession (e.g. Amd. XVII, XX, XXII, etc.)
The sole exception to this was Amd. XVIII, which banned the sale of intoxicating liquors. And we all know how that one turned out. All of this is just a long way of saying that the Constitution is not the place for singling out certain issues for attention. While conservatives (and, I would assume most people reading this blog) would argue that the Supreme Court wrongly "finds" a basis for single-issues contained within the wording of the Constitution, that is a different issue altogether. Point being, history shows us that amending the Constitution is for certain things only - changing the structure of government, if you will. Banning gay marriage (or outlawing flag burning, for that matter) does not qualify.
Are any conservative legal types here at all troubled by the fact that in the last decade or two, the Republican Party has repeatedly trotted out gimmicky constitutional amendments they clearly didn't think would pass and maybe didn't really want to pass, just to get political points from the base?
1. Rauch is simply wrong in drawing any kind of connection in Virginia between the Marriage Affirmation Act and Warner's tax increase. Conservatives did notice the tax increase, and were greatly pissed off about it (especially when we learned that VA's budget was in surplus even without the tax increase), especially over the fact that it had been enabled by "moderate" republicans. Warner's successor, Tim Kaine, is now paying the price for that. (The State House held firm in opposing any new tax increases for transportation funding this year.)
2. Rauch is the Supreme Court won't strike down DOMA. I'm not so sure. The groups pushing gay marriage have a very well-thought out legal strategy, they know what kind of precedents to establish, they know what kind of people they will need for test cases. Lawrence v. Texas was an essential first step for them; the holding in that case was extremely broad, and it lends itself to two paralell, yet related lines of attack against DOMA. My prediction for how it would work:
Two gay non-residents get married in MA (or some other state that allows gay marriage), return to their home state (a state like VA that does not), and then sue their home state to require recognition of their out-of-state gay marriage under the full faith and credit clause. Home state balks, invoking the Defense of Marriage Act. Gay couple goes to federal court seeking a) to have DOMA declared unconsitutional under full faith and credit clause, or b) to have bans on gay marriage thrown out under the Equal Protection clause (citing Lawrence v. Texas with great ebullience). The district and/or circuit courts, being courts, say OK. (I can't imagine this not happening. Even the 9th Circuit case I believe Rauch references, Smelt v. County of Orange, did not uphold DOMA's constitutionality, but only said that the plaintiffs in the case lacked standing to challenge DOMA.)
Result: Supreme Court a) strikes down DOMA and allows a handful of states to make gay marriage the de facto law of the land by the full faith and credit clause, or b) declares bans on gay-marriage unconstitutional on an equal protection basis. (It would need to be a 5-4 decision now that O'Connor is gone - Stevens, Souter, Ginsburg, Breyer, and Kennedy casting the key swing vote - but that would be all that is needed.) And thus gay marriage will become the law of the land, without a single legislative act, executive order, or popular vote required.
I am an agnostic on the gay marriage issue: I don't know if it will be a net good or a net evil for American society. I do not currently support passage of the Marriage Protection Amendment. You are correct, it would be a violation of federalism to do so.
However, I don't doubt that there is an equal and opposite group of people intending to federalize the marriage issue to require states to allow gay marriage, and the conflict may come down to whose version of marriage will prevail at the federal level. To paraphrase Lincoln, the house will cease to be divided: it will become either all one thing or all the other. If this line of reasoning makes it to the Supreme Court, and the SCOTUS does strike down DOMA, you will see a huge backlash in favor of the MPA. Those who want gay marriage would do well to quit seeking its judicial imposition, and instead convince the people to adopt it at the ballot box, even if it takes longer to achieve.
Not an equal and opposite group. Those intending to federalize gay marriage are a tiny minority (unlike those who oppose gay marriage), but it is a tiny minority with enormous influence. That's why they won't take Thief's advice: They know that their chances of achieving this legislatively, except in a couple of very liberal states, are zero. Hence, the need to impose it through the courts.
What about the Sixteenth Amendment which gave the federal government the power to levy an income tax?
You mean like the Equal Rights Amendment?
I'm not sure the language in Lawrence is as strongly in favor of gay marriage as you suggest. There is a lot in Lawrence suggesting that the Justices were concerned that an aspect of life that was central to defining what it means to be homosexual was made criminal. I don't think DOMA would be analogous in that regard.
Also, see one of the last couple paragraphs of the opinion in Lawrence, where this is written:
That quote suggests a different result from Lawrence would follow if the law involved whether the government must recognize a given relationship.
Look how many voter initiatives have been overruled by courts. Most voters favor capital punishment, but the Supreme Court banned it. Few Texas voters favored releasing felons who had served just 15% of their sentences, but that is what a federal judge forced them to do. The voters of Massachusetts didn't decide to grant marriage licenses to same-sex couples; unelected judges imposed that on the state. In California, the voters voted to ban racial quotas and public education in Spanish, only to find that judges forced them to accept both on judicial say-so.
The reason we get proposals to amend the Constitution in matters such as burning the flag, same sex marriage, abortion and so on, issues which would normally be settled by statutes enacted by elected legislators, is that judicial tyrants have so frequently struck down even popular legislation. The proximate issue here is same sex marriage but the ultimate issue is defense of self-government against judicial tyranny.
When was the last time that was trotted out? 30 years ago?
Indeed, Lawrence involved a state criminalizing what is essentially private behavior. While a lot of behavior can be constitutionally criminalized by the Federal gov't or state gov't the bar is still pretty high. On the other hand, the bar over which types of marriage contracts to recognize and how to recognize them remains one where the gov't has much more flexibility.
Then the proper proposal is one that addresses over-reaching judicial decisions. But such a proposal would be difficult because the judicary is supposed to act as a check on what 'the voters' want. In all the cases you cite there are no doubt hundreds of counter examples where legislatures and executives attempted to pass laws and rules that violated the fundamental rights of individuals and the courts properly stopped them from doing so without regard to whether or not 'the voters' wanted it.
The day they haul it out in a non election year I'll begin to think they are actually serious about it.
Sadly, we have yet another flag desecration bill working it's way through congress as well.
Pretty pathetic pandering. But who's suprised?
And wow! Talk about demagogary!
Hilarious! Chicken Little just called and he wants his beak back!
More like 2005.
Rauch says:
You seem to agree:
I'm curious. What do you make of CFEP v. Bruning in which a federal district court struck down Nebraska's State Constitutional Amendment prohibiting recogniction of same-sex marriage? How can you and Rauch argue that states are dealing with the issue just fine in light of this decision. If state marriage amendments are themselves unconstitutional under the federal constitution, isn't the only remedy then a federal constitutional amendment?
Please note, I am not arguing for the specific language of the MPA. (I think state LEGISLATURES should be left to decide this issue for themselves.) But, in light of CFEP v. Bruning, how can you argue that no federal amendment is necessary?
What do you and Rauch have against a federal amendment (I believe Senator Hatch floated it) that does nothing more than require legislative federalism?
I don't think anyone seriously thinks, as Professor Carpenter claims "the states are addressing the issue on their own in a variety of ways... federalism is working," except in the sense that eventually homosexuals will win in the Supreme Court. And realistically, for law professors, what other definition of "working" is there?
History shows us that amending the Constitution is for certain things only - changing the structure of government, if you will. Banning gay marriage (or outlawing flag burning, for that matter) does not qualify.
Suppose the Court finds a Constitutional right to same-sex marriage, how should the People respond to that ruling, if they disagree? Are you suggesting that a constitutional amendment would be an innapropriate response? What other response mechanism do the People have?
Maybe you think that a Court will not find a right to same-sex marriage, or that, at the very least, the MPA is premature, but those seem to be entirely different arguments than the one you raised in your post.
So, you must also strongly support the Kelo majority. It's a good thing those the Supreme Court didn't impose its judicial tyranny on the decisions of the elected representatives of New London.
Saying you oppose "judicial tyranny" and support "self government" is meaningless. Every serious person agrees that sometimes the federal courts have to step on majority rights. The question is when.
The only thing served by that is one wing of the GOP base.
Tell that to the people of Georgia whose constitutional amendment was recently struck down by the rather feeble argument that the that it was "presented incorrectly to voters" by violating the single subject rule.
The amendment was on the ballot in November 2004, and the wording of the question--"Shall the Constitution be amended so as to provide that this state shall recognize as marriage only the union of man and woman?"--was apparently so confusing that almost 76 percent of Georgians were "fooled" into voting for it…or so says the judge.
Keep in mind that a majority of Americans oppose same-sex marriage. Are you saying that "one wing of the GOP base" is the majority of the population?
The Democratic Party does have a plank on SSM:
Kerry and quite a few Dems have called for fully-equal, federally recognized civil unions as a compromise. In the waning days of the last presidential campaign, even Dubya supposedly said he supported civil unions, but there was no explanation of what that meant and very, very little coverage of what was probably an unscripted blurting on his part.
As for the librul allies in the judiciary, this issue has come up in the supreme courts of several states with almost identical results: bans on same-sex marriage are unconstitutional. You can claim that it's those libruls, but is it just libruls? In Alaska, Hawaii, Vermont...
However, you don't have any specific language in the Constitution guaranteeing a right to same-sex marriage, because when the Fourteenth Amendment was ratified, the idea would have probably gotten you locked up in a mental hospital.
I don't like the idea of an unlimited majority. Majorities make mistakes--sometimes big ones. But watching the way that judicial tyranny is taking over, I am more inclined towards simple majority rule than I used to be.
The web site you linked about the ERA in 2005 is by the Alice Paul Institute. The ERA isn't an item on the agenda of the Democratic Party today, which is the obvious distinction.
Further, whatever you think of the ERA, I'm pretty confident that back in the day when it was being debated seriously that (i) the supporters were truly sincere about it, as opposed to using it as a cynical ploy only in campaign years, and (ii) it actually had a realistic chance of passing.
"The claim [in Romer] was that there was no rational basis for refusing to include homosexuals in anti-discrimination laws."
I think you overstate the case. The claim in Romer was that allowing discrimination based on the inherent characteristic of homosexuality bore no rational relationship to a legitimate state interest. The court didn't say the state had to include homosexuals in anti-discrimination laws. What it did say is that the state can't uniquely allow homosexuals to be discriminated against.
No state would be allowed to expand marriage to same-sex couples. The wording is plain.
If Colorado voters had decided to exclude alcoholism, or pedophilia from anti-discrimination ordinances, do you think the Supreme Court would have overturned such a constitutional amendment? Of course not.
Here in Idaho, the marriage amendment that will be on the November ballot completely prohibits any marriage except "one man, one woman." It wasn't my choice. When I went down to harangue the legislative committees, I made it clear that I would prefer something that simply reserved power to define marriage to the people, or their elected representatives. There didn't seem to be the support for that.
Homosexuals decided that they couldn't trust the legislatures to make the right decision about defining marriage, and so used their control over the courts to accomplish their ends. Now, conservatives have decided that the homosexuals were right--you can't trust the legislatures to make the right decision, so they are engraving "one man, one woman" in stone. Perhaps homosexuals should have quit when they were ahead, after Lawrence, instead of doubling down with Goodridge v. Department of Public Health (Mass. 2003).
First of all, in California only a couple years ago (2003?) the electorate voted overwhelmingly NOT to allow gay marriage. Arnold was simply not allowing a couple extremist politicians to subvert the will of the majority.
States cannot be left alone for two reasons. There is the problem of federal courts. We've already had one amendment overturned in federal court. All we need is a couple more democratic nominees and no state amendment will be safe.
Furthermore, if people can travel to get married, and then go home, you have a problem. Unless DOMA stands up forever (which it won't) if one state (e.g. Massachusetts) decides to legalize gay marriage, that is basically forcing every other state to allow it. The goal of anti-abortion people is to stop a practice they dislike within their state - people against gay marriage don't care where or when it happens, they don't want it to be recognized in their state.
Finally, why do we want to prevent national culture wars? We've been fighting and losing such a war for 50 years, and now we have a chance to make a reversal. Rolling over and not fighting would make no sense. Most of this country supports the FMA (at least 50%, and up to 57%). If politicians want to vote against their constituents (as many will be), they should face the consequences. It won't pass this year, or next, but given time there is a good chance the FMA will become law.
The defintition of "public use" is not as clear as you think, but that's a question for another thread. The Constitution uses many imprecise terms like "cruel or unusual punishment," "due process," "equal protection," and "unreasonable." What "process" is "due" under what circumstances? What has to be "equal"? Etc., etc., etc. Thoughtful people can disagree about their interpretation.
The point is that it's just silly to argue that courts engage in "judicial tyranny" whenever they overturn a majority decision. It's also unreasonble to say that a judge is abusing his or her power because he or she intepreted an unclear word differently than you would have. Those were the points the comment was making. That's what I was responding to.
If Lawrence had been decided in the simplest and most logical way, without an agenda, O'Connor's Equal Protection argument advanced in her concurrence would have been the approach. Instead, Kennedy, who wrote Roemer v Evans in the broadest terms he could as a rational basis decision when his allies were unable to get a majority for heightened scrutiny for GLBT, also got Lawrence. And he wrote that one as broadly as he could using unnecessarily expansive grounds. That stupid Texas law deserved to get a stake through the heart- too bad the federalism enthusiasts didn't go try to get legislature to simply kill it politically. Instead, they went to the courts. Surprise, surprise.
It is quite obvious that the 5 SCOTUS members listed above have no intention whatever of allowing the states to decide the issue for themselves. Personally, I favor the Colorado compromise of civil partnerships, but not marriage, though I would be perfectly willing to face Prof. Carpenter in the Minnesota legislature debating his proposals as well.
Two questions for anti-gay-marriage, anti-abortion Republicans: If states can be allowed to go their own way in defining human life, why not allow them to go their own way in defining marriage?
Two words: Roe vs Wade.
Activist judges can and will attempt to force their morality across state borders. Legal attacks on state autonomy by gay activists have not dissapeared. Nor will they, until their agenda is enforced nationwide, just as it was with the pro-abortion agenda.
Where constitutional amendments are concerned, why is preventing gay couples from marrying so much more urgent than preventing unborn children from being killed?
Because politics is the art of the possible. Your friends put gay marriage on the front burner -- not mine.
And they won't rest until a nationwide agenda is forced upon the states. It's rediculous to try and claim otherwise.
I guess you missed the box on the site which reads “ERA bills reintroduced in Congress on March 15, 2005” and the stars next to the links to the three bills as well as lists of the sponsors.
Ah the power of reading.
It certainly is an interesting insight into people's thinking when there is a subset of persons that can be identified logically by the descriptor "alcoholics, pedophiles, and homosexuals." What exact characteristic sets this group - and only this group - off from everyone else?
(At least beastiality and necrophilia are apparently too vulgar of comparisons.)
FMA is a desperate attempt at relevancy on an issue that didn't even exist a generation ago by setting the law in stone before any more people can change their mind. Sort of a 'one man, one vote, one time' approach at squelching any possibility of change, except by some future super-super-majority. There is ZERO probability of an amendment - a slim chance of Congressional passage, which itself would require a certifiable miracle, but no chance that fewer than 13 states will refuse to ratify (probably more than 13). Personally, I'm waiting for proponents to put their 'save marriage' foot where their mouth is and introduce a federal ban on divorce.
Sure--but there's at least some language such as "cruel and unusual punishment" upon which one might be able to hang a legitimate argument. It is quite clear that while the Framers did not have a valid understanding of the meaning of the similar phrase in the English Bill of Rights, they did understand it to prohibit the sort of torturous punishments that hung over their heads if they had lost the Revolution: things like drawing and quartering.
Reasonable people can disagree about the meaning of some phrases. No reasonable person thinks that the Bill of Rights or the Fourteenth Amendment was supposed to require the states to recognize homosexual marriage, or to require repeal of laws against sodomy--ideas that would have been regarded as ludicrous (at best) in 1789 and 1868. Jefferson was one of the great liberals of his era when he proposed reducing the punishment for sodomy from execution to castration. This is where your side crosses the line from "reasonable disagreement" to fantasy, imagining that the Fourteenth Amendment provides a basis for striking down laws that you don't like (and that in some cases, I don't particularly like).
Agreed. The problem is when judges start to make things up, as they did in Lawrence, to do what they can't do by persuasion. If the Supreme Court ruled that the laws punishing rape have no rational basis, and are discriminatory because nearly all convictions are of men, and hung all this on the equal protection clause, you would agree that this qualifies as judicial tyranny? Conversely, if the Supreme Court ruled that a state did not have the authority to repeal sodomy laws because sodomy leads to AIDS, which impacts Interstate Commerce (by affecting the entire economy), would you agree that this qualifies as judicial tyranny?
From what I understand from the news articles about that decision, it was not feeble. It seems that the amendment also altered the jurisdiction of Georgia courts.
If the rules say that Constitutional amendments must only be about one subject, then making one about two or three subjects is invalid.
We discriminate against drunk drivers--even though many drunks manage to drive without hitting anyone.
We discriminate against convicted felons--they can't vote in many states, and can't buy a gun in any state.
We discriminate against minors: they have limited authority to make contracts, they can't buy guns, they can't buy cigarettes, in many states they can't smoke in public.
We discriminate against the mentally ill. They can, under some conditions, be held against their will.
Now, you can argue that homosexuality is different from these other categories. But what makes it lawful for these other classes to be subject to discriminatory laws, but not the class that you are a member of?
Well, the people (by virtue of the popularly-elected President and Senate) could appoint new Justices who would overturn the ruling. So there is redress. In any event, my argument was simply a historical argument - "single issue amendments" have never been adopted, and in the sole instance where one was, it was completely ineffectual and summarily rejected in just a few years time. There are some compelling theories as to why that is, but that is for another time.
Well, the people (by virtue of the popularly-elected President and Senate) could appoint new Justices who would overturn the ruling. So there is redress. In any event, my argument was simply a historical argument - "single issue amendments" have never been adopted, and in the sole instance where one was, it was completely ineffectual and summarily rejected in just a few years time. There are some compelling theories as to why that is, but that is for another time.
Or maybe the income tax amendment is another exception. That would make it the only one.
The wording is indeed plain; It prohibits only interpreting the federal and state constitutions as requiring same sex marriage. It does nothing to prevent legislatures from enacting laws providing for same sex marriage.
It is, in fact, very nicely phrased to achieve the intended purpose of preventing the imposition of same sex marriage by judges, while still allowing it to be arrived at by the normal democratic process.
I said that the ERA is not on the agenda of the current Dem. party. And, despite a list of folks who have technically signed on to supporting it, it's not. It's not going to be a campaign issue, and it's not intended to be a campaign issue for any of those folks. It's mostly a statement of principle, sincerely meant.
Again, the contrast is a host of gimmicky constitutional amendment proposals by Republicans that ARE meant to be campaign issues -- gay marriage, balanced budget, flag burning.... These are trotted out every couple of years primarily for entirely partisan purposes, and then abandoned, even though the Repubs. have the Presidency, the House and Senate, and the majority of state legislatures.
Even if the Dems and the ERA were equivalent (which they aren't), it's telling that you can only come up with one amendment the Dems. have supported that dates from the 1970s, when I can think of three the Repubs. have pushed -- in their own cynical way -- in the last decade. So I stand by my claim: the Republicans are the party of the gimmicky, cynical Constitutional Amendment. Not something conservatives should be proud of.
Those supporting an anti-SSM amendment would be your "tiny minority with enormous influence?" Do you think an amendment to the US constitution imposing a single no-SSM rule on all 50 states, whether they want it or not, isn't "federalizing marriage?"
“Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the Constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”
No state would be allowed to expand marriage to same-sex couples. The wording is plain.
The wording is indeed plain; It prohibits only interpreting the federal and state constitutions as requiring same sex marriage. It does nothing to prevent legislatures from enacting laws providing for same sex marriage.
It is, in fact, very nicely phrased to achieve the intended purpose of preventing the imposition of same sex marriage by judges, while still allowing it to be arrived at by the normal democratic process.
Exactly how would a state statute providing for SSM be consistent with the amendment's language that marriage in the US shall consist only of the union of a man and woman?
Suppose a state amends its constitution to state that "This state shall recognize and permit SSM." What then is the effect of the federal amendment stating that state constitutions, including this language "shall not be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman?"
Full faith and credit has never required states to recognize a marriage created in another state. Heck, Loving v. Virginia was an out of state marriage, valid where it was created, but not in Virginia (because it was interracial) but FF&C wasn't even argued. States have different rules for marriage now (minimum age, whether cousins can marry etc.). FF&C hasn't invalidated that.
Even Ponnoru at National Review says that now. We'll keep getting these votes scheduled a few months before every election until even the most thick skulled and gullible members of the Republican base realize it's part fund raising tactic and part cover to distract attention from profligate spending, shameless pork barrelling, incompetently executed wars etc.
What about the 26th Amendment? -
Bias! Age discrimination!!
A single issue amendment if there ever was one.
A simple "ooops, I was completely wrong" would have sufficed.
How can anything be "functionally equivalent" to marriage if it is not recognized by the federal government, from which most of the benefits and responsibilities of marraige derive?
What we simply wish to do is to be allowed to marry the person who we love, the exact same right that straight people have. We don't wish to impose it upon anyone. If you should receive an invitiation to a gay marriage, you are free to burn it and refuse to attend.
Which is okay with me -- your choice of wedding present would probably be rather tacky anyway.