June 09, 2006


by PG


I concede that the second sentence of the Marriage Protection/ Federal Marriage Amendment (henceforth called "the Amendment") -- "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" -- is reasonably read as an attempt to keep the judiciary from interpreting federal and state constitutions to require legal recognition of same-sex marriage. Indeed, inasmuch as one believes there is a serious problem with current standards of judicial review, I would advocate expanding the Amendment to prevent judges from finding a right to integrated education, contraception, interracial marriage, etc. in constitutions either.

However, I simply cannot see the first part of the Amendment in that light at all, though I have heard the argument that "Marriage in the United States shall consist only of the union of a man and a woman" is justified by being a slap in the face to an out-of-control judiciary. In this view, the ominous advance of judicial activism, from discredited Lochner, to popularly accepted Brown, Griswold and Loving, to controversial Roe, Lawrence and Goodridge, is so in need of essentially symbolic restraint that the effect the Amendment has upon actual human beings is swept away in the wave of that rhetorical necessity.

A more rational conservative perspective comes from Charles Krauthammer, who does not appear to be a supporter of same-sex unions even if they arrive through legislation.

So why not have a federal constitutional amendment and smite the arrogant solons of Massachusetts, Nebraska and Georgia, and those yet to come, all at once?

Because it is an odd solution for a popular-sovereignty problem to take the gay-marriage issue completely out of the hands of the people. Once the constitutional amendment is passed, should the current ethos about gay marriage change, no people in any state could ever permit gay marriage.

The amendment actually ends up defeating the principle it sets out to uphold. The solution to judicial overreaching is to change the judiciary, not to undo every act of judicial arrogance with a policy-specific constitutional amendment. Where does it end? Yesterday it was school busing and abortion. Today it is flag burning and gay marriage.

It won't end until the Constitution becomes pockmarked with endless policy amendments. The Constitution was never intended to set social policy. Its purpose is to (a) establish the rules of governance and (b) secure for the individual citizen rights against the power of the state. It defaces the Constitution to turn it into a super-legislative policy document.

This is not perfectly correct; people could permit gay marriage once they overturned the Amendment, in 18th-erased-by-21st fashion. However, to put language into the Constitution that one thinks is likely to be found permanently undesirable by a super-majority of the next generation of Americans is a childish response to the judiciary: If you don't respect the Constitution, then I won't either, so there!

Krauthammer's position is shared by John McCain, who opposed the amendment despite his belief that "marriage should be reserved for the union of a man and a woman," because "I disagree that the current Constitutional structure provides insufficient mechanisms for ensuring that the public meaning of marriage is not tampered with by activist judges."

The presence of the first sentence of the Amendment, rather than being an appropriate limitation on the power of the third branch, instead is the occasion for a round of conservative celebration of their own straightness.
David Vitter (R-LA): "I don't believe there's any issue that's more important than this one."
John Thune (R-SD): "The federal marriage amendment debate simply is an opportunity for us to affirm our support for marriage."
James Inhofe (R-OK), who used a family photo as an exhibit in Senate debate: "I'm really proud to say that in the recorded history of our family, we've never had a divorce or any kind of a homosexual relationship. So I think that maybe I'm the wrong one to be doing this since I come with such a strong prejudice for strong families."

June 9, 2006 08:58 AM | TrackBack
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