Against a constitutional amendment banning gay marriage:

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.

Another prominent conservative against a federal marriage amendment:

You've already got the publicly stated opposition of prominent conservatives like Bob Barr, Dick Cheney, Chris Cox, Bruce Fein, John McCain, Ramesh Ponnuru, George Will, and others (not to mention several VC bloggers). Now you can add to the list James Q. Wilson, a respected voice in conservative intellectual and policy circles. Last March 18, in the Wall Street Journal, Wilson criticized the one-size-fits-all abortion policy represented by Roe v. Wade. Then he wrote this:

The states should also decide about gay marriage. Some conservatives are urging Congress to propose a constitutional amendment banning this, but this would be a mistake. People should vote on this matter and about the conditions of life they wish to experience where they live. Though I oppose gay marriage, voters in some states may approve it. If they do, we will have a chance to learn what it means in practice, with the costs and benefits falling on people who have accepted it.

Moreover, a state-by-state vote on the matter provides an opportunity for gay advocates of this policy to make their case. A constitutional amendment would deny them that opportunity, leaving them perpetually angry. Since feelings run high on this matter, it would be a mistake to let it be decided as the right to abortion was decided. If there were the gay marriage equivalent of Roe v. Wade or a constitutional ban on it, we would infect the nation with the divisive anger that followed Roe and our earlier attempt at alcohol prohibition.

I love the link here between Roe and the federal marriage amendment. Both spring from the absolute conviction that you have laid your hands on the final truth of the matter, that no amount of evidence the other way could ever convince you that you are wrong, that your conviction must be imposed immediately and forevermore on the entire nation lest some fools living in dissident states think and act otherwise, and that the Constitution itself must be made to conform to your current policy preference.

Wilson continues:

If there is to be a constitutional amendment, it would be better if it said this: "Nothing in this Constitution shall authorize a federal judge to decide that a marriage can be other than between one man and one woman." If I could think of language to bar judges from making other social policy decisions, I would add it, but the words fail me.

This jurisdiction-stripping amendment would allow the states and the people to experiment with gay marriage, something George Will has said is worthwhile. I don't think even this narrower amendment is necessary, since I think the likelihood of federal judicial imposition of nationwide gay marriage in the near- to medium-term is very low. But at least a jurisdiction-stripping amendment would actually address the stated, populist concerns about judicial activism. The amendment the Senate will vote on next week would do much more than that. It's overreach and overkill.

(Hat tip: Walter Olson.)

Is the Federal Marriage Amendment Consistent with Federalism and Democratic Values?

That's the title given to a panel discussion at which I'll be speaking on Monday. The other panelists will be Prof. Louis Michael Seidman and Mark Agrast. It's being co-sponsored by Cato and the Center for American Progress. It will take place Monday, June 5, 10:00 a.m.-11:30 a.m. at the Center for American Progress, 1333 H Street NW, Washington DC. It's open to the public, but they ask you to RSVP by going to the CAP website here.

For those of you not in the DC area who are not inclined to fly in for the panel, it'll be broadcast by CSPAN.

Bush to retract support for a federal marriage amendment in Monday speech, news report says:

This is stunning news.

First, here's a little background to put this development in context. By the middle of 2003, the Federal Marriage Amendment had been languishing in Congress for a couple of years. Its main organizational sponsor, the Alliance for Marriage, had gotten a few congressional sponsors but no prominent politicians had made it a focus of legislative efforts, there had been no hearings on the proposed amendment, and no vote had been scheduled. The president had not lifted a finger to support the effort.

Throughout the last half of 2003, President Bush faced mounting pressure from religious conservatives in the GOP to come out in favor of the amendment. On June 26, 2003, the Supreme Court issued its opinion in Lawrence v. Texas, declaring state sodomy laws unconstitutional and backing the "dignity" and "autonomy" of gay persons seeking to enter "personal relationships." Justice Scalia ominously warned in dissent that gay marriage was next on the judicial agenda. Opponents of gay marriage figured that now the president would back an amendment. But, at a July news conference, Bush declined to do so, saying only that his lawyers were looking at ways to support traditional marriage.

Then, in November 2003 in Goodridge v. Dep't of Public Health, the Massachusetts high court ordered that state to become the first in the country to recognize gay marriages. Religious conservatives believed that surely now the president would announce his support for an amendment. Still Bush was silent.

Next, in January 2004, the president gave his state of the union address before a nationally televised audience. Speculation mounted that Bush might take this high-profile opportunity in an election year to urge a constitutional amendment. Surely the president's lawyers had had enough time to analyze the issue. But beyond some boilerplate rhetoric about protecting traditional marriage, Bush offered nothing to amendment supporters.

Politicos were bewildered. It was an election year. The president's base was antsy and the war in Iraq was already faltering. It made no sense, politically, for the president not to endorse an amendment. Supporting an amendment would thrill religious conservatives. It would also appeal to traditionally Democratic voters who opposed gay marriage but were otherwise uncomfortable with Bush. At the time, since everyone conceded the amendment had no chance of passing, it would be seen as a symbolic gesture that didn't really hurt anybody. Those Republicans and independents uncomfortable with an amendment that seemed to them so pointless and unnecessary as to be inexplicable other than as an exercise in gay-bashing, but who otherwise supported Bush on issues like national security and taxes, could overlook his support for the amendment as a necessary concession to a political imperative. With everything to gain among gay-marriage opponents and little to fear from its supporters, Bush's hemming and hawing made no sense.

It made no sense, that is, unless the president was acting on some principle under which he did not think, no matter the political cost, that we should amend the Constitution and strip the states of all power over the matter in order to cool the hot brow of the excitable partisan. Principle, not politics, must lay behind Bush's demurral.

Finally, in February 2004, the mayor of San Francisco and a smattering of other local officials around the country began issuing marriage licenses to same-sex couples in their jurisdictions. More than 4,000 gay couples in San Francisco alone signed up. Opponents of gay marriage warned of "chaos" and "lawlessness" and demanded presidential action.

Where Lawrence and Goodridge had failed to budge the president, the actions of these local officials provoked Bush at last. On February 24, 2004, President Bush called a news conference to announce he'd decided to support a constitutional amendment after all. "After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization," Bush said. The people were losing control over the issue; an alien idea was being forced on them. He also warned of unspecified "serious consequences throughout the country" if a city or state -- like Massachusetts — recognized gay marriages even in its own jurisdiction.

Within months, the "chaos" and "lawlessness" brought on by "local authorities" was ended by the authorities themselves, by higher state officials, and by the very courts Bush had said could not be trusted on the issue. The "crisis" of gay marriages ended almost as soon as it had begun. The 4,000 San Francisco marriages, for example, had all been nullified by the California Supreme Court. The states proved quite capable of policing themselves and their officials, as they always had, without the need for a federal amendment. The use of these isolated and now defunct local actions to justify a federal marriage amendment has been a particular embarrassment to FMA supporters.

As for Bush's stated fear that "a few judges" were undermining millennia of wisdom, two years later no federal court has even come close to trying to force gay marriage on the country — Lawrence notwithstanding. DOMA stands as good law, backed by the sole federal judge even to consider its constitutionality.

Additionally, after two years and more than 8,000 gay marriages in Massachusetts there have as yet been no "serious consequences throughout the country," about which Bush had worried. No other state is being forced to recognize same-sex marriages performed in Massachusetts. There have been no insuperable complications arising from discordant state approaches to the recognition of same-sex relationships.

And a remarkable thing has begun to occur since Bush's 2004 announcement, when he warned that unelected judges were usurping the will of the people. The people themselves, acting through their elected representatives, have rebuffed attempts to extinguish gay marriages in Massachusetts, have authorized gay marriages in California, have enacted civil unions in Connecticut, and are considering various forms of recognition for same-sex couples in other places. Gay marriage is no longer simply the cause of litigants, but is increasingly the cause of representative democracies.

In short, just about everything Bush said in February 2004 to justify his support for a federal amendment has been undermined by subsequent experience.

Now, the stunning news. In light of experience, it appears President Bush has rethought the question. He's called a press conference Monday to address the issue of a constitutional amendment banning gay marriage.

In advance of the press conference, the following news report has just come across my computer screen:

(Washington, D.C., June 4) President Bush will announce at a news conference Monday that he has decided to retract his support for a federal constitutional amendment banning gay marriage, says a source within the National Security Agency who monitored a presidential telephone call to congressional allies on the subject.

According to the NSA source, the president will make the following statement:

"Throughout my time as your president, I have made difficult decisions because I thought they were in the best interests of the country. I have stood by the principles that make this country great, and that have served it well for more than two centuries, regardless of the political consequences to me and my party. I believe the people should keep more of their money and that low taxes produce prosperity for everyone, so I have backed tax cuts that were demagogically denounced by members of the other party as helping only the rich. I believe you can plan better and invest more wisely for your future than the government can, so I have supported Social Security reform that many say is the 'third rail' of politics. I believe immigration has made this country great and that people who come here to make a better life for themselves deserve a chance to become Americans, so I have backed a path to citizenship for illegal immigrants despite the intense opposition of many members of my own party. And I think this country has a moral duty to help fledgling democracies and to carry through on its commitments, so I have refused to pull our troops out of Iraq despite the rising unpopularity of the war.

"Two years ago, in this place, I announced my support for a constitutional amendment defining marriage as the union of one man and one woman. I strongly believe that's what marriage is and should be. If I were a state legislator or a governor, I'd oppose defining marriage in any other way. I supported the amendment because, at the time, I feared that uncontrollable judges and local officials were recklessly and lawlessly playing with the foundation of the American family.

"But I was wrong. Like others, I overreacted to what seemed like an emergency. I did not have sufficient faith in the historic processes of American government. The local officials who were defying state law in 2004 have been brought into line. DOMA is still good law. The states have begun amending their own constitutions to define marriage. I have appointed many federal judges in the mold of Justices Scalia and Thomas, including two to the Supreme Court, who will not tamper with marriage. And while I still fear that some state courts will attempt to redefine marriage in years to come, I am confident that the people in those states can deal with their own courts if that is what they choose to do. After all, that is what we have always trusted them to do.

"We may not like the choices some states make about these matters, but if our nation's historic commitment to federalism means anything, it means that the states should, within constitutional limits, be allowed to go their own way on important matters of criminal law, property law, and even family law. That, at any rate, has been the dominant practice and theory of our federal design for more than two centuries.

"Never before in the history of the country have we amended the Constitution in response to a threatened (or actual) state court decision. Never before have we amended the Constitution to preempt an anticipated federal court ruling. Never before have we adopted a constitutional amendment to limit the states' ability to control their own family law. Never before have we dictated to states what their own state laws and state constitutions mean. Never before have we amended the Constitution to restrict the ability of the democratic process to expand individual rights. This is no time to start.

"I know this decision will not be popular with many members of my own party. But it is a president's responsibility to lead, not to follow, especially when it comes to matters of important principle. As on so many other decisions I've made, I will not bow to political pressure when I know better. Two years ago, I should have known better. Now I do."

Standing by his side at the news conference will be Vice President Dick Cheney, who said in 2004 that he opposes an amendment because states should be allowed to decide the issue for themselves and that "freedom means freedom for everybody"; Sen. John McCain (R-AZ), the leading contender for the GOP presidential nomination in 2008; former Rep. Bob Barr (R-GA), the main House author of DOMA; conservative commentator George Will, who announced on ABC's "This Week" that he opposes an amendment because state experiments with gay marriage may produce valuable information about whether the reform is worthwhile; conservative policy analyst James Q. Wilson, who likened a federal marriage amendment to that conservative bete noire, Roe v. Wade, in an op-ed for the Wall Street Journal; and numerous other life-long conservatives who have consistently championed federalism.

Also present will be First Lady Laura Bush, who recently said that the gay-marriage issue should be discussed "sensitively" and should not be used for political purposes.

Karl Rove, the president's senior political advisor, could not be reached for comment.

The news report comes from HSEPA, the Hope Springs Eternal Press Agency.

The New York Times and the federal marriage amendment:

Today's New York Times includes a story on the proposed federal amendment banning same-sex marriage. The story contains the following paragraph, describing the effect of the proposed amendment:

His [President Bush's] speech came as the Senate began to debate the proposed amendment, which would define marriage as being between a man and a woman and would prohibit judges from requiring states to grant same-sex couples the legal benefits of marriage.

This is a common description of the effect of the amendment, and it has appeared in one form or another throughout much of the news media over the past few days. Nevertheless, while it's true that the amendment would at a minimum "define marriage as being between a man and a woman" and "would prohibit judges from requiring states to grant same-sex couples the legal benefits of marriage," this description implies that that's all the amendment would do. Thus, it essentially accepts the interpretation offered by some supporters of the amendment (like Senate sponsor Wayne Allard) in their effort to make it seem as narrow and reasonable as possible. It unquestioningly accepts the controversial view that this amendment is basically limited to dealing with judicial activism.

However, there's an active debate over what additional effects the amendment might have. Those of us who oppose the amendment are quite concerned that it would do far more than define marriage and limit the power of judges. As I've argued, for example, its effect may also be to ban the legislative enactment of civil unions and make other legislatively created statuses for same-sex couples unenforceable. For details of the argument about why the amendment might be interpreted in this way, see the last section of my recent Cato piece on the amendment.

But the point here is not to establish whether I'm right or wrong about the possible effects of this amendment. The point is that the news media has a responsibility to communicate that the amendment may have broader effects than is currently claimed by its congressional proponents. The media doesn't have to resolve the interpretive dispute, of course, but it should at least make note of the debate, and give somewhere in descriptions of the amendment some indication that it may have effects more aggressive than the two noted in this and other stories. Not every reference to the amendment needs to note these possible additional effects (e.g., it's acceptable shorthand generally to refer to the amendment as "banning same-sex marriage"), but the possible additional effects should at least be mentioned in substantive stories about the amendment, like the one quoted above. The New York Times and other media who aspire to be fair, balanced, and accurate in reporting the news owe us better.

Video of panel on marriage amendment now available online:

Yesterday C-SPAN aired a panel discussion on the federal marriage amendment sponsored by Cato and the Center for American Progress. The video of that discussion is now available online here.

Panelists were Prof. Michael Seidman, Bruce Fein, Mark Agrast, and me. Although all of us opposed the amendment, you'll see that we had somewhat different reasons for doing so. The program lasted about an hour and a half, with me as the first speaker. If you have the time to watch, the exchange after the initial presentations from each panelist turned out to be unexpectedly lively.

The amendment is dead, long live the amendment:

The defeat of the federal marriage amendment in the Senate on Wednesday was welcome, if entirely expected. It was a nice surprise to see the amendment fall short of 50 votes even on a procedural motion (its total would have been lower had it come up for a substantive vote); to have seven Republicans vote against it; to hear even southern conservative Senator John Warner (R-VA) say he thought it went too far; and to realize that this probably set its high-water mark in the Senate.

The federal amendment, already on life-support, is dead for the foreseeable future, barring one of three very unlikely events: (1) a Supreme Court "victory" for gay marriage; (2) unprecedented and overwhelming gains for the anti-gay-marriage movement in the next few national election cycles; or (3) a proposal for a much narrower amendment that would, for example, simply strip courts of jurisdiction over the issue. Even a narrower amendment would probably fail, but things would get a lot more interesting.

We'll continue to see this amendment, of course. It will rise from its grave every two years like a ghoul in a late-night horror movie that one repeatedly kills, only to see it stumble blindly forward again (as Justice Scalia once memorably said about the Lemon test for religious establishment). It's the living dead.

All of this is cause for some celebration. But it is a muted celebration, the way one celebrates an essentially defensive victory. The debate in the Senate was a defeat for the amendment but it was not a win for gay marriage, which hardly any Senator even hinted at supporting. If we had an up-or-down vote on gay marriage in the Senate, it would lose 98-2, or thereabouts. And while many of the arguments directed at the amendment were quite good (emphasizing federalism, the overstated threat of judicial activism, and the overbreadth of the amendment), some of the arguments against the amendment were, shall we say, deflating. So, for example, we heard repeatedly that there were much more important issues we needed to address, like gas prices and our delicate relations with the Principality of Liechtenstein. I guess I have to agree with that in one sense. Any proposal is more important than one that should never have seen the light of day. Still, there was something baleful about cheering on people who were suggesting that anything related to the question of whether gays could marry was wasting our precious time. There was that not-those-people-again tone in much of the person-on-the-street interviews seen on TV, a sentiment some Senators against the amendment seemed to be exploiting. Even my beloved federalism argument can sound, in the wrong mouth, like "the states should be allowed to do this godawful thing if they want to." Forgive me for not finding much inspiration in that.

Then came the news, the same day, that Alabama had become the 19th state to ban gay marriage in its state constitution, which I suppose will stop dead in their tracks all those Alabama state court judges who've been seduced by pro-homosexual propaganda. Alabama and most of the other states that have passed constitutional gay-marriage bans (e.g., Texas, Oklahoma, and Mississippi) were unlikely to recognize gay marriage or anything else gay in the near future anyway, whether by legislative or judicial action, so not much is immediately lost. But I get the sense that long after the rational debate over whether gay marriage harms anything has been resoundingly answered "no," we're going to be stuck with these state amendments, adopted in a time when we didn't know any better. More precisely, "we" won't be stuck with these state constitutional amendments; gay families unfortunate enough to live in those places, with little means of escape, will be stuck with them.

With a federal amendment now effectively off the table, my guess is the anti-gay-marriage movement will redouble its efforts in the remaining dozen or so states that seem likeliest to pass such measures. The result, after a few more election cycles, will be a nation where about 35 of 50 states will be unable to give gay marriage (or civil unions or watered-down domestic partnerships) a try long after legislative and popular majorities in those states think it's a good idea. It's not exactly the same as having a federal amendment, but it's the next worst thing.