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April 6, 2004

A Do-Over Is Better than the Wrong Call

I've stepped back a bit from the debate over the two marriage amendments. It's true that I believe the Hatch amendment to be inadequate for the problem that we currently face, but my main objection is that it came to public attention before it was prudent to release an alternative to the Federal Marriage Amendment. For that reason, while I'm mildly vexed that Ramesh Ponnuru is actively promoting it, I also find Maggie Gallagher's response to him to be a little more fervent than necessary. This debate isn't taking place behind closed doors, after all. However, Ramesh doesn't really address my complaint, unless he means to sidestep it with this point:

Six: The courts will ignore the intent of the Hatch language to do all kinds of terrible things. "[I]f we had courts bound by the intent of the framers we wouldn't be facing this problem, would we?" So now the courts are the problem? I thought Gallagher's argument was that we would have a problem even without the courts. There goes Argument One, and most of Arguments Two and Three. If Argument Six is correct — that judges are so far gone that there's no way an amendment can constrain them — then the FMA is pointless too.

The choices that Ponnuru offers are too stark: either the courts will follow the intent of the language or they cannot be constrained. But the letter of the law isn't the only determinant of the environment in which the courts have to work — particularly considering that the deleterious trend at hand is the expanding use of extralegal precedent (e.g., personal, elite, and international opinion). The tacit reality, in other words, is that the judiciary must be constrained as much, or more, in a political, public-image sense than a legal one.

The FMA is drawn such that any transgression by the courts will offer political cover for very strong responses from the legislature and executive. The HA is considerably lighter in that respect. Therefore, if the latter becomes the Constitutional parry of the legislature, the judiciary is left with room to continue its strategy of legalisms and loopholes, wearing down marriage — and increasing its own power.

It may be that the American people are beginning to see past the gavel and through the black robes sufficiently that the other branches could muster the mandate to respond should judges wear the HA down to useless verbiage. I continue believe, however, that there's still hope — and therefore reason for endeavoring — to pass the stronger amendment in the first place.

Posted by Justin Katz at April 6, 2004 8:55 PM
Marriage & Family

The American people don't really care one way or the other about gay marriage. Zealots on both sides want to force their views on the public via an amendment or via the courts; the average person just wants the issue to go away.

The bad news for your side is that there's no way a federal constitutional amendment will pass, as most conservatives even think it is a bad idea. The good news for your side is that most ststae will amend their own state constitutions to ban gay marriage. The bad news again is that a couple states will legalize same-sex marriage...but, again, the good news is that other states won't be forced to accept it, and the federal DOMA law is constitutional.

Federalism might actually work in this case....shocking, I know, but hey...

Posted by: Mike at April 7, 2004 10:33 AM


I'm not sure it's so much that the American people don't care about this issue; rather, I've gotten the impression that they don't want to think about it. It's not so much a matter of disgust, I don't believe, as a desire to maintain a pleasant fiction: that the nice, seemingly compassionate move will always work out for the best.

The subtle difference, here, is that I'm less pessimistic about an amendment's chances. At some point, it'll become clear that the most efficient way to return to the pleasant fiction is to contradict it once. Keep an eye on the polls; I expect that sometime this summer, opinion will start to head toward critical mass. (Of course, I could be wrong, and various events and spin could push the matter either way.)

I agree that DOMA is constitutional. However, judges around the country are putting their doubts on record in other cases, and I'd be extremely surprised if the act's obvious constitutionality saved it from judicial overruling.

Posted by: Justin Katz at April 7, 2004 10:46 AM

I think you've got it right when you say "The tacit reality, in other words, is that the judiciary must be constrained as much, or more, in a political, public-image sense than a legal one." And I think that this is the crux of the difference between Ramesh and Maggie - Ramesh is looking at things (it appears) from a narrower legal/political viewpoint - i.e. "what can pass muster in the current environment", whereas Maggie is looking at things from a broader cultural and sociological viewpoint. I think she would agree that the Hatch amendment would be better than nothing, but that, as you say, it would merely slow down the SSM movement, rather than put a stop to it.

I agree with you (and Maggie) that the more people become aware of the situation, the more they will support the FMA. This might even be enough to bring the Senate around...

Posted by: Mike S. at April 7, 2004 12:34 PM


Notice the dichotomy in your statement,

"Zealots on both sides want to force their views on the public via an amendment or via the courts"

A constitutional amendment is pretty much the opposite of forcing one's views on an unwilling populace - its pretty much the standard of widespread agreement on an issue. The courts, on the other hand, can, and do, force their particular view of an issue on the entire population under their jurisdiction.

Posted by: Mike S. at April 7, 2004 12:37 PM