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March 15, 2004

Debating the Do-Over Amendment

In an email exchange, Ramesh Ponnuru has assured me that I'm incorrect to believe that the Hatch marriage amendment, while blocking courts from construing same-sex marriage into existence, would leave open the possibility for federal, or even state, courts to strike down laws that explicitly forbid it. But thin pretext is the order of the day, in the world of black robes, and there are plenty of linguistic slots through which that pretext can slip.

To be sure, I can understand why those who would preserve traditional marriage are so quickly willing to compromise, what with theologically and politically conservative ministers placing stones on the bandwagon. Still, as I wrote to Ponnuru, I think there's time and reason to hold off on switching vehicles:

If I were strategizing for the pols, I'd have suggested withholding the Hatch compromise from public view until a state or two were actually forced to recognize another state's marriage. Stanley Kurtz seems to think New Mexico would fall pretty quickly; New York would, too. That'd be a major talking point, particularly since the polls have been going about 1% each direction (for and against) each month simply on the basis of possibility, at which rate the majority would switch hands this summer.

Today, Kurtz argued that, not only will the Hatch amendment ultimately fail even if enacted, but the federalist reservations that inspired its creation are erroneous. Kurtz doesn't say whether he would consider something (Hatch) to be better than nothing (an impassable FMA), but I think he'd agree with me both that it is and that it isn't yet necessary.

For my part, if we're going to abandon the original Federal Marriage Amendment, which I still don't believe we should do, I'm rather inclined to take the posture that my fellow Rhode Islander Saleh Shahid expressed in a letter to the Providence Journal, about the marriage fight in Massachusetts:

When a court orders an executive office to issue gay marriage licenses, or orders a legislature to raise taxes, or orders the secretary of state of New Jersey or Florida to violate their own election laws, there should be only one response: "Make me." The power of police and of pardons both lie in the executive branch. The only intrinsic power judges have over other branches is to ignore laws that appear in their courts (judicial review).

And when a judge abuses power by decreeing Solomonic sentences far beyond precedent or statute (e.g. The court hereby orders you to stop smoking on Wednesdays, to pet a cat every day, or to memorize Terms of Endearment), then legislators must act immediately to remove that judge from his throne.

Most importantly, legislators must realize that constitutional amendments will neither grow them a backbone, nor substitute for one.

Think we could pass a Get a Spine and Act Like Coequal Branches Amendment?

Posted by Justin Katz at March 15, 2004 11:12 PM
Marriage & Family