Today the Cato Institute is publishing a paper I've written on why a federal amendment banning gay marriage is a bad idea, even if you oppose gay marriage. Of course, if you think recognizing same-sex marriages is a good idea, that's a strong reason by itself to oppose an amendment banning them. This paper is written for conservatives and moderates who either oppose or are unsure about same-sex marriage. Here's the executive summary:
Members of Congress have proposed a constitutional amendment preventing states from recognizing same-sex marriages. Proponents of the Federal Marriage Amendment claim that an amendment is needed immediately to prevent same-sex marriages from being forced on the nation. That fear is even more unfounded today than it was in 2004, when Congress last considered the FMA. The better view is that the policy debate on same-sex marriage should proceed in the 50 states . . . .
A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it, on grounds of federalism, confidence that opponents will prevail without an amendment, or a belief that public policy issues should only rarely be determined at the constitutional level.
There are four main arguments against the FMA. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.
Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.
Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.
Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.
The paper goes into some detail responding to the common arguments for a federal amendment on this issue, most prominently the facile judicial-activism argument. You can read the whole thing here. While there is a reasonable (though ultimately unpersuasive) argument to be made against gay marriage as a policy matter, the case for a constitutional amendment is very weak. And it is weak for good conservative reasons.
I'll be in Washington on Monday speaking to Cato and the Center for American Progress, as well as to congressional staff, about the proposed amendment. When the schedule is available publicly, I may update this post to let you know more.
UPDATE: A number of commenters have made responses and criticisms based solely on reading the short summary of the paper provided above. The paper itself goes into some detail on almost all of the criticisms made — for example, on questions of how and why the fear of judicial activism on this issue is overstated, why and how the amendment is unprecedented in our history, and just how broad its reach may turn out to be. I encourage readers, once again, to read the whole thing before commenting.
One error in the comments, in particular, needs more detailed attention because it illustrates how some supporters of a federal amendment have deployed misleading arguments about judicial activism. This particular error repeats the common mistake of claiming that Lawrence v. Texas led to the result in the Massachusetts marriage case, Goodridge v. Dep't of Public Health. As I point out in the paper, Lawrence has been read very narrowly by other state and federal courts (often too narrowly in my view). No federal court anywhere at anytime has ordered the recognition of any gay marriage. While the Goodridge court cited Lawrence a handful of times for unexceptional propositions in its 30-page opinion, the opinion is remarkable for its lack of substantive reliance on Justice Kennedy's work in Lawrence. In fact, here's what the Goodridge opinion said about Lawrence on the precise question of gay marriage:
Whether the Commonwealth may use its formidable regulatory authority to bar same-sex couples from civil marriage is a question not previously addressed by a Massachusetts appellate court. [footnote omitted] It is a question the United States Supreme Court left open as a matter of Federal law in Lawrence, supra at 2484, where it was not an issue.
Goodridge, 798 N.E. 2d 941, at 948 (emphasis added).
Notably, none of the suggestive and flowery passages in Lawrence that are said to support claims for gay marriage appear in the Goodridge opinion. Reading Goodridge as a whole, there is no doubt the Massachusetts court would have reached its result without Lawrence. This, by itself, doesn't mean that there's no potential for judicial activism on the gay-marriage issue, but it does undermine the claim that developments in the Supreme Court are leading us down a quick path to nationwide gay marriage. Judicial action on this issue in the coming years is most likely to come from the state courts interpreting their own state constitutions. But, as I note in the paper, the states themselves have always been entrusted to rein in their own state courts if they choose to do so.
Related Posts (on one page):
- The amendment is dead, long live the amendment:
- Gays, Federalism, and Minority Rights:
- Video of panel on marriage amendment now available online:
- The New York Times and the federal marriage amendment:
- Bush to retract support for a federal marriage amendment in Monday speech, news report says:
- Is the Federal Marriage Amendment Consistent with Federalism and Democratic Values?
- Another prominent conservative against a federal marriage amendment:
- Is Marriage a Federal Issue?
- Against a constitutional amendment banning gay marriage: