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March 29, 2004

The Do-Over Amendment Adds a Layer of Complexity

When the Hatch marriage amendment first hit the Net, I suggested that, whereas the FMA would be an undeniable rebuke to courts and preserve the definition of marriage until such time as a large majority of Americans wish to change it, the Hatch version seemed more likely to inspire new lengths of parsing from the judge's bench. Maggie Gallagher makes a similar point, today:

By creating a complicated debate over federalism, rather than a simple and clear debate over the meaning of marriage, the Hatch language will provide multiple "hatches" for political officials who either secretly support or don't care about gay marriage to escape the political consequences of their views.

Legally, the Hatch amendment's effects are complex and unclear. Politically, its effect is all too clear: By splitting the opposition to same-sex marriage into camps, the Hatch proposal is the opposite of mature leadership. It is a monkey wrench thrown into a serious, difficult, but absolutely critical effort to restore not only the proper balance of the courts, but a common, shared understanding of what marriage is, and how much it matters to this generation and to generations to come.

Which may be why Sen. Hatch made it clear last week that he endorses the original FMA.

This may be one of those moments in history at which two critical matters coalesce such that they can only be adequately addressed together. There's still plenty of time and reason for optimism to stick with the FMA. I suspect the picture will look quite different this summer, and having the Hatch language out there as a "compromise" will make the debate that much more difficult.

Posted by Justin Katz at March 29, 2004 10:26 PM
Marriage & Family

Maybe the lesson here should be to avoid an amendment which will, as the original FMA does, forbid any state legislatures or courts from allowing any benefits of any kind for same-sex couples, and instead let individual states decide this issue. I can't figure out how people who rail against "judicial activism" and "ignoring the will of the people" demand an amendment which will codify that American citizens have no voice and no rights on this issue for generations to come. The only thing I can figure out is that someone thinks that gays will all vanish into a pit of hell and be viewed with disgust and scorn by all around them if the Constitution says they deserve no ability to have hospital visitation rights or property rights.

Posted by: Bill at April 4, 2004 4:33 PM


I've argued extensively that the FMA wouldn't "forbid any state legislatures or courts from allowing any benefits of any kind for same-sex couples," and can only conclude that you've picked up spin from such folks as Andrew Sullivan designed to paint the amendment in as harsh a light as possible.

I also think you're a little too cavalier about the possibility of each state's having a unique definition of marriage. (Civil unions, yes, but not marriage.) And didn't you attack conservative states, in another thread, for laws that you don't like?

Posted by: Justin Katz at April 4, 2004 7:53 PM