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February 21, 2004

The Soul of an Amendment

Given the rules for passage of a Constitutional amendment, balances and compromises must certainly be struck. As I noted yesterday, Jonathan Rauch (who is personally against any amendment having to do with marriage, anyway) has suggested that it would be easier to pass an amendment that does nothing more than restrict the gay marriage movement to state-by-state action. He would even leave state judiciaries free to do as the Massachusetts Supreme Judicial Court has done.

I've already suggested that such an amendment would sap the motivation of the amendment's strongest supporters, and I just recalled something that one such supporter, Robert Knight, said back in 2001:

Once you abandon morality, you must rely solely on utilitarian arguments. This is one of the weaknesses of the current campaign for the Federal Marriage Amendment: Its defenders have purposely avoided making moral arguments. No constitutional amendment campaign can succeed without a great moral principle driving it. Curbing judicial power is appealing, to be sure, but it is not enough to motivate the mass movement necessary to generate success. Nobody goes into the trenches to preserve a "national debate." Just because homosexual pressure groups are attacking the proposal with vehemence does not mean it is the best vehicle. They react with outrage at any resistance to their agenda.

Seen in this light, Rauch's proposal would siphon off even the "moral principle" having to do with curbing judicial power. By hammering conservatives for abandoning federalism, he seeks to enshrine it as the sole motivation for acting at all. The balance of principle between morality, social requirements, separation of powers, and federalism would be completely restricted to what — for me, at least — ought to be seen as more of a guideline for action rather than its purpose.

Of further interest is that the aspect of the FMA that Rauch would keep is mainly that expressed in the second sentence. In his own attacks on the FMA (which are too plentiful for me to go sifting through right now), Andrew Sullivan has taken the opposite approach, concentrating on limiting conservatives' action merely to the man-and-woman definition.

And this, ultimately, highlights a bit of sleight of hand on Rauch's part. He is characterizing his solution as "to constitutionalize DOMA." But the Defense of Marriage Act, itself, defines marriage as between a man and a woman. In effect, therefore, the FMA as it currently stands does essentially what Rauch is claiming his amendment would do.

Posted by Justin Katz at February 21, 2004 2:28 PM
Marriage & Family
Comments

Certainly you are right that if one finds permitting SSM to be morally evil it makes no sense to do everything possible to make sure no state--or foreign country--to commit such evil. Hence I support the Thirteenth Amendment and a hypothetical amendment to prohibit capital punishment. I can also understand how many might support an amendment that would not only overturn Roe v. Wade (which would leave it to states to decide whether to permit abortions), but would also ban abortion across the entire nation. Not everybody who opposes SSM, though, necessarily sees it as an evil. This is what I think Shulz's column was about. Some object to a view of the Constitution which guarantees a right to SSM, and might even object to SSM as a bad idea, yet they still support the right of states to reach their own conclusions.

Rauch's idea to constitutionalize DOMA differs from the FMA in two key areas. One, DOMA only defines marriage as the union of a man and a woman for purposes of federal legislation. It was a manner of clarifying the legislative intent of the many laws that deal with marriage. It allowed that the Congress could intend a program for same-sex married couples, but that would have to made explicitly. This restriction at the federal level only acknowledged that a state might legitimately recognize same-sex marriages, and didn't interfere with the state in this manner.

The second key difference is that the FMA would mandate how state laws and constitutions were to be interpreted by state judges. This was Prof. Levy's main objection. It's one thing to say "this Constitution doesn't require same-sex marriage", that's a legitimate clarification of what one intends the Constitution to mean. (I would still strongly oppose the amendment because I think the Constitution does and should require SSM, but I understand others might disagree). For the federal government to tell a state what its own constitution means, though, is unprecedented.

Posted by: Gabriel Rosenberg at February 21, 2004 6:08 PM

Prof. Rosenberg,

Regarding the "constitutionalize DOMA" argument, I was merely suggesting that rewriting DOMA as an amendment would require the man-woman clause. Now, you and Mr. Rauch are free to disagree with that (obviously), but it isn't the case that his proposed amendment does, strictly speaking, what he says.

As for the dispute with Prof. Levy, I've already written out my response at length. In essence, I think it's a semantic game, and even then, deserving of a "so what" from anybody who thinks an amendment is worth supporting whatever the language.

Posted by: Justin Katz at February 21, 2004 10:04 PM

The amendment removes any constitutional doubt about DOMA. You're right it doesn't constitutionalize it in the sense that a future Congress by majority vote could recognize SSM without needing to further amend the constitution, but it constitutionalizes the principle of DOMA which was that the feds and the other states need not recognize the SSM of a sister state. That is no court could force either of those events given his amendment.

I actually agree with you, for the most part, about how Levy's argument was largely semantical. For example the way I read him (and I agree), is that it's OK to prohibit slavery in the states, but not to require State constitutions to be read so as to prohibit slavery. In either case the effect is the same. Slavery is banned. The first way seems more honest to me, though. Slavery is banned because it's an evil that cannot be permitted anywhere in this country. It has nothing to do with what state constitutions say. If a state cannot do something, say so. There's no need to tell it how to interpret its own constitution. The argument should be about how slavery is wrong, not whether state constitutions permit it.

The problem is some advocates of the FMA claim to be merely opposing "judicial activism". They think the constitution is being (or about to be) misinterpreted. Rauch's amendment would solve that problem. The truth is the FMA would do much more than limit the courts in this matter. It would also limit legislatures (both state and federal). The FMA advocates should defend that position without resort to scapegoating the courts.

Posted by: Gabriel Rosenberg at February 21, 2004 10:55 PM

That is no court could force either of those events given his amendment.
— Well, that's not exactly true. A state court could force its state to recognize the marriage of another state.

it's OK to prohibit slavery in the states, but not to require State constitutions to be read so as to prohibit slavery.
— But the 13th Amendment says that "slavery shall not exist." That's an even finer line than you're suggesting. As I've already argued, a legislature could pass a law creating slavery, just as Levy argues, under FMA, it could pass a law permitting gay marriage. However, in both cases, the courts would have to say, "What you've created does not exist."

The issues have been approached differently, with a view toward history, but "marriage is only between a man and woman" is indistinguishable from "marriage between a man and man or woman and woman does not exist."

The FMA advocates should defend that position without resort to scapegoating the courts.
— But Levy, himself, provides a response to this: if the legitimately held concern is judicial activism, then one can't limit the courts without, in some degree, limiting the legislature. If the legislature can find something to be "required," then so can the courts. What the FMA does (as even its most visceral opponents are beginning to have to admit) is to require a legislature that wishes to institute some sort of benefits for homosexual couples to do so in the way that is explicitly its domain: not what is required, but what is desired.

I'd say that "restriction" represents a net gain for freedom.

Posted by: Justin Katz at February 21, 2004 11:35 PM

Well, that's not exactly true. A state court could force its state to recognize the marriage of another state.

Yes, but if the people of a state want to give their courts this power, that's not the conern of the federal government. A similar amendment could be pushed for at the state level. If the problem is one of constitutional interpretation, then a constitution can be amended to clarify the issue.

The issues have been approached differently, with a view toward history, but "marriage is only between a man and woman" is indistinguishable from "marriage between a man and man or woman and woman does not exist."

I agree. My question is what's the point of the second line? Once slavery is forbidden we wouldn't allow a state to permit slavery by another name. (It's not "slavery" it's a "personal property statute") So marriage by another name shouldn't be permitted, if marriage itself is forbidden. There wasn't an additional line of the Thirteenth Amendment, "Neither this Constitution, nor the Constitution of any State, nor State or Federal law, shall be construed to permit that the status of slave or the legal incidents thereof be forced upon unenslaved individuals"

But Levy, himself, provides a response to this

I admit, I couldn't really follow this aspect of Levy. I also don't care too much about the "will FMA do what they say it will do?" debate. I figure the FMA could be revised to do what it says. Certainly if the problem is faulty constitutional interpretation, an amendment can clarify the intentions of the constitution on a certain matter. I'm more concerned with what the advocates of FMA say it will do. Matt Daniels says it will still allow legislative civil unions, but when I think civil union I think VT-style legal marriage equivalent. Could a state do that even if not prompted by a court? Would CA or NJ's Domestic Partner laws be acceptable?

Posted by: Gabriel Rosenberg at February 22, 2004 12:32 AM

Yes, but if the people of a state want to give their courts this power, that's not the conern of the federal government.
— That's Jon Rauch's argument, but frankly, I don't buy it. I haven't had the time to research it, but I'm pretty sure the federal government guarantees that the states will have a representative form of state government (I can't become King of Rhode Island), and it can certainly be argued that the courts are infringing on that right.

A similar amendment could be pushed for at the state level.
— Right, but it's obviously more difficult to pass a constitutional amendment in each state than for the courts in each state to do essentially the same thing with opposite effect. The only amendments thus far are Alaska and Hawaii, where gay marriage was judicially legislated and civil unions were not allowed. Look at Massachusetts, where the SJC, in what could only have been a calculated move, ensured that there would be two years of gay marriage before even the swiftest amendment could pass.

My question is what's the point of the second line? Once slavery is forbidden we wouldn't allow a state to permit slavery by another name.
— Well, as I suggested in another post, at the time of the 13th Amendment, courts didn't take it upon themselves to construe etymology. Slavery was slavery even by another name; the problem now is that marriage is not marriage even when called marriage. Moreover, it's the definition, and the corresponding legal and social meaning, not the practice, that is under attack.

It also seems to me that the second line will work against the most restrictive readings of the first line. So, if some traditionalist judge wishes to disallow a basic benefits package for gay couples, those who disagree could point to the second line as proof that the legislatures are still intended to have that ability.

Could a state do that even if not prompted by a court? Would CA or NJ's Domestic Partner laws be acceptable?
— According to my reading, most domestic partnership and civil union laws would have to be rewritten, in some degree, to avoid explicit reference to marriage. It's possible that courts in CA, NJ, and VT (for example) would let them stand, as is, however, and it's unlikely that the SCOTUS would take up the issue in the foreseeable future. The most salutary effect of the FMA is that such battles could be fought in their entirety without any effect on other states; if marriage itself is at stake, the entire country will be on the edge of its seat with every single one of the 50 potential battles.

Posted by: Justin Katz at February 22, 2004 9:44 AM

Thanks for your explanation for how you see the second line. As I've said, I'm more concerned with the intention and trust the wording can be changed, if necessary, to achieve that intention.

You don't buy the argument about leaving it to states to decide these things, and I don't buy the argument about the Constitution guaranteeing each state "a Republican Form of Government" (Article IV, Section 4) This clause I believe has rarely been used. Until now, I've never heard it suggested that it gives the federal government the right to overturn state court decisions on matters of state law (and if it did give that right a new amendment would be unnecessary). To do so would imply the power of a court to declare a law unconstitutional was inconsistent with a Republican Form of Government. The whole concept of judicial review at any level would be invalidated. If that's what supporters of the FMA want, let them argue for that.

For the record, Nebraska and Nevada also have constitutional amendments against SSM. The idea that an equal protection clause (especially one explicitly forbidding discrimination based on sex) could be used to invalidate a prohibition on SSM is not new. The Hawaii Supreme Court raised the likelihood of that possibility in May 1993 and the reasoning was subsequently used by a Hawaii Circuit Court in December 1996. Since that time there has been a push in many states for a state constitutional amendment to prevent this from happening there. They have been largely unsuccessful in part because many people believe this is a matter best left to the courts. I don't think you can say the SJC can only be considered a calculated move. The case was originally filed in April 2001 and worked its way through the courts. The SJC actually spent twice as long rendering the decision than they ususally do. Would you have had them delay their decision three years because some people might want to amend the constitution. I also think the US Constitution would take some time to amend.

Posted by: Gabriel Rosenberg at February 22, 2004 1:04 PM

As I've said, I'm more concerned with the intention and trust the wording can be changed, if necessary, to achieve that intention.
— But, of course, wording can change in any direction, and there will be parties on both sides pushing for it (as has Rauch).

I don't buy the argument about the Constitution guaranteeing each state "a Republican Form of Government" (Article IV, Section 4) This clause I believe has rarely been used.
— Thanks for the link; as I said, I hadn't researched the notion fully. Similar to what I said with reference to Prof. Levy, the rarity of an action doesn't constitute a negative precedent; it just makes the relevant question whether the circumstances of the moment justify the unusual step. We'll disagree on whether that's the case, currently, but for the same reason that I find the rarity of reference to the Full Faith and Credit clause in the context of marriage cold comfort faced with the prospect of a variegated assault of litigation to nationalize gay marriage, I see no reason to shy from invoking long-dormant clauses.

This is one reason, I would imagine, that the court in Luther v. Borden (following your link) said "it rests with Congress to decide what government is the established one in a State... as well as its republican character." There isn't a foreseeable on/off switch at which the line would be crossed. Similarly, if the remedy falls to Congress, then Congress is fully capable to decide that an amendment on a specific issue is sufficient rebuke.

And it mustn't be forgotten that the Congress doesn't require a Constitutional precedent to pass a Constitutional amendment, nor does that amendment have to be in accordance with other clauses (although that would certainly be preferable).

To do so would imply the power of a court to declare a law unconstitutional was inconsistent with a Republican Form of Government. The whole concept of judicial review at any level would be invalidated.
— For all that my side, on this issue, is accused of extremism, it seems that those who oppose our intentions are much more likely to insist on extremes. Legislatures are enabled to restrict judiciaries in any number of ways, when deemed necessary. Doing so "invalidates judicial review" no more than judicial review invalidates the right to legislate.

There's an undercurrent, to this whole fight, involving conficting concepts of government. The libertarian side would prefer to see the law as if it can be constructed like the rules to a board game, which is why, perhaps, they prefer to push their agenda through the courts. Part of the genius of our Founding Fathers, I would say, lies in their realization that such government is neither desirable nor possible.

Posted by: Justin Katz at February 22, 2004 2:13 PM

Legislatures are enabled to restrict judiciaries in any number of ways, when deemed necessary. Doing so "invalidates judicial review" no more than judicial review invalidates the right to legislate.

We're not talking about the legislature restricting the judiciary. We're talking about the federal government restricting the power a state gives to its judiciary. The argument is that it's necessary to do because the citizens of Massachusetts are being denied a Republican Form of Government. (or they're being subjected to a judicial tyranny or something along these lines). Why is judicial tyranny in this case, but not when the a court strikes down other statutes that were passed by "the people"? I can see an argument against allowing four justices [would it matter if it were more?] to overrule the will of a democratically elected legislature. I don't see what basis is being used to determine which cases this should be allowed and which it shouldn't. Is it something special about family law? Is it something that applies only to same-sex marriage?

The SJC derived its authority from the people of Massachusetts. It seems to me only the people of Massachusetts should be charged with altering or revoking that authority. For the federal government to do so would not be protecting the rights of the people of Massachusetts, it would be removing their right to delegate authority as they see fit.

I don't doubt the ability to raise a long dormant clause or to establish new authority in the Constitution through an amendment. I just disagree that judicial review is incosistent with a Republican Form of Government, and I don't think the Constitution should be amended to dictate to states what authority they may give to their judiciary.

Posted by: Gabriel Rosenberg at February 22, 2004 3:16 PM

We're talking about the federal government restricting the power a state gives to its judiciary.
— Right. I was merely suggesting that it isn't self-evident that a state has a right to have an overly activistic judiciary. (I want to stress that mine is a mild point, narrowly made within the context of Rauch's suggested amendment and in concert with larger arguments.)

Why is judicial tyranny in this case, but not when the a court strikes down other statutes that were passed by "the people"?
— Well, that's part of the discussion, and part of the reason that the exercise of such power lies with democratically elected representatives in Congress. For the record, too, the SJC didn't strike down some law "passed by 'the people'"; it redefined a term used throughout the history of Massachusetts law.

For the federal government to do so would not be protecting the rights of the people of Massachusetts, it would be removing their right to delegate authority as they see fit.
— Of course, we're dealing with a prudential matter. It isn't difficult to imagine a scenario wherein a minority group (or a majority group, for that matter) contrives to stack the judiciary in such a way as to effectively subvert the power of the elected branches of government. As I said, I can't become King of Rhode Island, whether initially elected or not. Similarly, the federal government wouldn't allow the legislature of Massachusetts to hand over its power to the Catholic Church.

Given the amendment process, the states are, in effect, delegating authority to the federal government to help set boundaries within which the state's ruling class must work.

I just disagree that judicial review is incosistent with a Republican Form of Government
— I never said judicial review is inconsistent with a republican form of government. However, I don't believe that "judicial review" is a label that can be legitimately applied to the action that the SJC took.

Posted by: Justin Katz at February 22, 2004 3:36 PM

I was merely suggesting that it isn't self-evident that a state has a right to have an overly activistic judiciary.

What makes it overly activist? You say that's for Congress to determine, but I'm asking what criteria should they use?

it redefined a term used throughout the history of Massachusetts law

It did so by reading laws gender-neutrally. Instead of striking the laws down it opened them up to apply equally without regards to the impermissible classification. Is that the distinction? Judiciaries may have the power to strike laws down, but not read them in a class-neutral manner?

Given the amendment process, the states are, in effect, delegating authority to the federal government to help set boundaries within which the state's ruling class must work.

No, because the amendment applies to states that do not ratify it as well.

I don't believe that "judicial review" is a label that can be legitimately applied to the action that the SJC took

I disagree, but for the sake of argument, suppose that what the SJC did was not judicial review. Would, in your mind, the second line of the FMA permit judicial review with regards to laws concerning marriage? It seems to me the argument over the courts and SSM has to do with whether it's a violation of equal protection to deny a marriage license to a person wishing to marry someone of the same sex. I see a big difference in amending the US Constitution to clarify what the equal protection clause in that document means, and amending the constitution to clarify what similar clauses in state constitutions mean. There is also a difference between the latter and an amendment that says it doesn't matter what such clauses mean, no state may permit SSM.

Posted by: Gabriel Rosenberg at February 22, 2004 5:00 PM

You say that's for Congress to determine, but I'm asking what criteria should they use?

— Well, this represents a fundamental shift in the discussion, presuming that the Congress has that right under the proper circumstances. In beginning to address it, I'd note that the benefit of our system of legislature is that it can make distinctions that needn't follow sharply drawn criteria, both in assessing the existence of a problem and in determining a remedy. Thus, if a court oversteps its bounds with respect to marriage, it is appropriate for Congress to respond only in that context. Hammering down tyranny only where it arises, and in the hopes that more disruptive measures needn't be taken. Now to a specific case at hand:

It did so by reading laws gender-neutrally. Instead of striking the laws down it opened them up to apply equally without regards to the impermissible classification.

— No. It began by construing — and admitting that it was doing so — "marriage" to represent a different relationship than it had always and everwhere in Massachusetts law been meant to represent. Every usage of "marriage" ever was done with the understanding that it indicated a particular joining of two classes (in your terminology) of people: men and women. Only by fundamentally changing that definition was it able to declare that the impermissibility of distinction by sexual orientation required it to be "opened up."

Would, in your mind, the second line of the FMA permit judicial review with regards to laws concerning marriage?

— Of course, as long as it doesn't involve construing those laws to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

I see a big difference in amending the US Constitution to clarify what the equal protection clause in that document means, and amending the constitution to clarify what similar clauses in state constitutions mean.

— So? Nobody's saying that there's no difference. Just that the latter is justified — necessary — under current circumstances.

Posted by: Justin Katz at February 22, 2004 5:48 PM

Up until a certain point in time every usage of the word "governor" had the understanding that it was a position held by a man. Does that mean a court has no right to require that a woman be allowed to run for governor? The change, whether you regard it as fundamental or not, to the definition of marriage was to read person instead of man or woman. That is it removed a sex-based classification. Yes that classification had been around for a long time, but the idea of legal gender equality is itself very new.

What is the justification for denying states the right to determine how their laws should be applied? What's wrong with a state eschewing classifications based on sex?

Posted by: Gabriel Rosenberg at February 22, 2004 6:54 PM

But the law does not discriminate against men or women with respect to their ability to enter into the relationship of marriage. Both men and women can become spouses. The Mass. court ruled in such a way as to change — or at least to presume for itself the power to decide — the meaning and purpose of marriage.

To be applicable, your "governor" example would require that the courts change the definition of what a governor does. Gender is irrelevant to the activity of governing; it obviously is not so to the activity of marriage. Even you admit that the court changed the definition of marriage.

What is the justification for denying states the right to determine how their laws should be applied? What's wrong with a state eschewing classifications based on sex?

— Well, now you're pushing this discrete discussion well beyond the terms of the post. Moreover, you've done so with two distinct and extensive questions. The short answer to the first question is that, in the specific instance of marriage, a patchwork solution will not hold and would be inimical to the very justification for recognizing the relationship in the first place. The short answer to the second question is that sex matters in the context of marriage, in a way that is central to the very purpose of the institution.

Posted by: Justin Katz at February 22, 2004 7:25 PM

Well I admit this discussion has moved beyond the terms of the original post. If you would like to return the focus to the post, I respect your wishes. You orignially claimed "the FMA does essentially what Rauch is claiming his amendment would do". You even went so far as to accuse him of sleight-of-hand. Yet when I pointed out there was a big difference between the two you said, "So? Nobody's saying that there's no difference." Whether or not the FMA is justified, can we agree that it is not essentially the same as DOMA?

At your request, I am trying to focus on the subject of the original post. Still, I must object to you labeling some your claims as "obvious". Whether gender is relevant to marriage is at the heart of the debate over SSM. If the claim were obvious, then there would be nothing to discuss.

Posted by: Gabriel Rosenberg at February 22, 2004 8:43 PM

Taken in reverse:

Whether gender is relevant to marriage is at the heart of the debate over SSM.

— I apologize; I should have been more specific. That gender is relevant to marriage is obvious according to the definition that the SJC changed (that marriage is a union between a man and a woman). The objection to the court's action is that it presumed to make a decision about whether gender ought to be relevant to some more-true definition of marriage than existed explicitly in the law.

You orignially claimed "the FMA does essentially what Rauch is claiming his amendment would do". You even went so far as to accuse him of sleight-of-hand.

— Just to make sure it's clear: Rauch's claim, as I meant it here, is that his amendment "constitutionalizes DOMA" — without reference to whatever legal effects it might have. His "sleight of hand" comes in his cutting out the definition of marriage, which is, indeed, part of DOMA.

Yet when I pointed out there was a big difference between the two you said, "So? Nobody's saying that there's no difference."

— Your "big difference" wasn't in reference to DOMA vs. FMA. It was between the federal government's clarifying equal protection at the federal level and clarifying it at the state level. DOMA clarified full faith and credit requirements and defined marriage. FMA does, yes, go the extra step of resolving the federalist crisis that would result from a patchwork solution for marriage. Obviously (ha!) they aren't equivalent, but the two central components correspond.

Perhaps I was too cute in attempting to turn the tables, but that's why I hedged my language (e.g., "a bit" and "essentially"). I may have relied too much on the general understanding of DOMA and its purpose. Suffice to say that saying that the FMA "constitutionalizes DOMA" is more accurate than saying the same of Rauch's proposal.

Posted by: Justin Katz at February 22, 2004 10:24 PM

Well I still disagree about which more accurately "constitutionalizes DOMA", although I admit the argument is largely semantical. "Constitutionalize" would mean to make "constitutional". What is meant by "constitutional"? You're taking it to mean "written in the constitution". I'm going with what I think is a more standard understanding (and Black's Law definition):

Consistent with the constitution; authorized by the constitution; not conflicting with any provision of the constitution or fundamental law of the state.

By that definition, Rauch's amendment would constitutionalize DOMA, because it would settle any doubts about whether DOMA was constitutional. Even when we talk about an amendment to ban flag burning we really mean an amendment to authorize Congress to prohibit flagburning.

Even if we took your definition of constitutionalize, it's a toss up of which amendment comes closer to writing DOMA into the constitution. DOMA did two things. It clarified that states didn't need to give recogntion to same-sex marriages of other states and it clarified the legislative intent of the word "marriage" in federal laws and regulations. Rauch's amendment would do the first, and authorize Congress to do the second. The first line of the FMA would do the second, and make the first irrelevant by additionally prohibiting states from performing same-sex marriage. In addition it would add a second line that would prevent state judges from interpreting state laws or state constitutions in certain manners. There is no objective way to measure which is more accurate, but Rauch's strikes me as closer in wording and especially in spirit to DOMA. The idea of DOMA was each state could decide for themselves about SSM, but they couldn't decide for the rest of the country. That was the attitude expressed by Dick Cheney in 2000, and the author of DOMA, Bob Barr, has expressed this view. For that reason Barr has come out against the FMA.

Posted by: Gabriel Rosenberg at February 23, 2004 9:51 AM

By that definition, Rauch's amendment would constitutionalize DOMA, because it would settle any doubts about whether DOMA was constitutional.

— I smile as I write this: You aren't saying that this has been your argument all along, are you?

Posted by: Justin Katz at February 23, 2004 7:57 PM

:)

Well, pretty much. My second comment in this thread was:

The amendment removes any constitutional doubt about DOMA. You're right it doesn't constitutionalize it in the sense that a future Congress by majority vote could recognize SSM without needing to further amend the constitution, but it constitutionalizes the principle of DOMA which was that the feds and the other states need not recognize the SSM of a sister state. That is no court could force either of those events given [t]his amendment.

It just occurred to me this morning to look up "constitutional" in Black's Law and to verify that the flag burning amendment was pretty much the same sort of thing.

Posted by: Gabriel Rosenberg at February 23, 2004 9:17 PM

Well, then in part I've been misunderstanding.

But note that, even in this brief excerpt, you've used it in both senses: "removes any constitutional doubt" (clarifies the Constitutionality of) versus "constitutionalizes the principle" (writes into the Constitution).

Posted by: Justin Katz at February 23, 2004 10:51 PM

I used it in the second sense because that's the way you seemed to be using it. I did so as it applied to a principle. When we talk about laws being constitutional we do not mean "written in the constitution", we mean "allowed by the constitution". DOMA is a law. To constitutionalize it would be to make it allowed by the constitution. At the very least that's a reasonable interpretation, and I don't think Rauch should be accused of sleight-of-hand.

This debate is quite relevant because one common justification for the FMA is tha an "activist" court might throw out DOMA. If that were the concern, Rauch's amendment would suffice.

Posted by: Gabriel Rosenberg at February 24, 2004 11:29 AM

When we talk about laws being constitutional we do not mean "written in the constitution", we mean "allowed by the constitution".

— But that seems to me to be a distinction between saying a law is "constitutional" and saying that you would like to "constitutionalize" it. If Rauch meant the word in the sense that you're suggesting, one would have expected his suggestion to deal with changing the language of DOMA — to make it constitutional. (Of course, I'm of the opinion that it clearly is already.)

This debate is quite relevant because one common justification for the FMA is tha an "activist" court might throw out DOMA. If that were the concern, Rauch's amendment would suffice.

— Actually, I think the opposite is more true. At best, Rauch's amendment will have no effect in that respect. If DOMA is struck down as unconstitutional, it will be because the court will have declared that it isn't covered by Congress's right to "prescribe... the Effect thereof" with respect to the Full Faith & Credit clause. Alternately, the SCOTUS could declare that it is unconstitutional in that it discriminates in contravention of equal protection.

In neither of these cases is Rauch's amendment directly relevant (and if that were his intent, one would have expected him to propose an amendment to clarify "Effects," for example). To the contrary, that half of the law, which the court could construe to be its essential purpose, is no longer necessary might make it less politically dangerous for the court to nix DOMA.

Posted by: Justin Katz at February 24, 2004 11:43 AM