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Reasonableness as a Fallback Position
07/31/2003

It seems that a backlash in the polls and the President's straight-marriage friendly remarks have persuaded Andrew Sullivan that demagogic rhetoric about segregationism and theocracy weren't the way to go in securing what he sees as gay rights. Now he's back to the more reasonable realm of federalism:

Okay, so here's something that I don't support but offer to the president as a suggestion. He wants to reserve marriage to heterosexuals but he doesn't want to hurt, wound or marginalize gay people. I'm prepared to accept that is his genuine position. But it won't be convincing if all he does is back the FMA, as currently worded. How to avoid that nightmare? He could back an alternative amendment that says merely that no state should be forced to recognize the marriages in any other state. That essentially codifies federalism and prevents a nationalization of gay marriage through the courts (a highly unlikely scenario, in my view anyway). And it doesn't tell states what they can and cannot do for their own residents. It doesn't impose a single definition of marriage on the whole country. And it preserves state autonomy. That seems to me a sensible compromise if some kind of amendment looks impossible to stop. It's conservative in the right sense. I, for one, want to see federalism work on this matter. Why? Because I think the experience in one state will reduce the fear and panic elsewhere. But those who predict disaster also have a chance to prove their case. Isn't that the way this country is supposed to work?

Put aside the fact that Sullivan admits, beforehand, that he himself does not support this "sensible compromise" (i.e., it would be damage control). I believe that this whole issue strikes at the core of what we want our society to be, and I'm very sympathetic to the argument that the states ought to be allowed a maximum of self-determination in that respect. So, let's take Sullivan's suggestion seriously. Here's the new amendment:

No state may be forced to recognize the marriages in any other state.

Surely Mr. Sullivan doesn't want to open the door for a return of miscegenation, and it seems to be overkill to uproot a tradition of full faith and credit that is already well established within the United States, so perhaps we ought to specify exactly what it is that the amendment would be driving at (particularly considering Sullivan's previously expressed concerns about amendments that allow for broad interpretation), including language that closes the back-door of polygamy:

No state may be forced to recognize marriages in any other state that do not involve the union of a man and a woman.

Well, perhaps we're working our way toward compromise, but this new amendment doesn't offer any guidance as to what it would mean for a state to "be forced" to recognize particular marriages. This would tie the hands of the federal government, presumably, but what about, say, an Arkansas judge taking it upon himself to declare, from within his state, that Arkansas must recognize gay marriages in Massachusetts? Surely, all of his appeals to the fairness of the American people and his assertion that "The two states contemplating equal marriage rights both have majorities in support of the move" suggest that Sullivan is amenable to the argument that the people in each state — deciding, in the spirit of federalism, what they want their society to be — oughtn't have new forms of marriage forced upon them by a state judicial oligarchy. After all, why rely on judicial activism based on public polls when we can just put such issues to democratic or representative votes? So, here's where we are, taking the obvious step of disallowing judges to invent might-as-well-be-marriages:

No state shall be required to recognize marriages performed in any other state that do not involve the union of a man and a woman. Neither this constitution nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

There you go. That looks like a reasonable compromise. Unfortunately, I don't think that those who would propose such an amendment would gain the support of the portion of the American citizenry that deems homosexual marriage unacceptable anywhere within the United States. After all, some fault the current language of the Federal Marriage Amendment for allowing marriage-like arrangements. Certainly, there is reason to suspect that what the new language would gain in support by leaving open the possibility of gay marriage for individual states will not come near making up for the support that the very same opening will lose. Sullivan wouldn't be proposing that the President put forward a compromise that is certain to fail (to Sullivan's advantage) would he?

Perhaps Jonah Goldberg should write a column suggesting that homosexual activists should have pushed for civil unions, instead of full marriage, when they had a chance, but now must content themselves with appealing to the people and legislatures of each individual state to define a new legal arrangement that would apply to relationships that are not, and cannot be, considered marriage, as it has been defined in our culture as far back and broadly as it is reasonable to look.

Posted by Justin Katz @ 12:47 PM EST