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The Latest Debating on the Federal Marriage Amendment
07/12/2003

Ramesh Ponnuru has responded to Eugene Volokh and Andrew Sullivan (read up from the link). (Ramesh mentions this post of mine, which summarizes the discussion so far.) He makes the following great point, which is important to keep in mind when discussing the FMA:

Whatever the state has decided, legislatively, to reserve to marriage, the courts may not extend beyond marriage. That leaves state legislatures with a lot of running room.

If one takes seriously the legal threat that the amendment's supporters do—that without the amendment, the courts will impose same-sex marriage—the amendment leaves states with more running room than they'll otherwise have.

This statement speaks directly to something that jumped out at me from Andrew Sullivan's response to Ponnuru's previous statement:

Say Massachusetts decides by a mixture of court rulings and legislative action to legalize gay marriages. The FMA would bar this from happening - denying the state the right to determine marriage, a right the states have always enjoyed.

Sullivan isn't just interested in leaving legislatures and popular referenda open as options: court imposition is an integral (almost exclusive) component of the entire strategy to enact gay marriage nationally. The truth of this can be seen in appeals to the phrase "gay rights," as well as the national movement against the Texas sodomy law. As I noted shortly after that ruling, I heard gay activists on the radio declaring that the Texas law affected homosexuals everywhere. Take that as context for Sullivan's concluding paragraph:

It needs to be exposed for what it is: an unprecedented attack on states' rights, on minority enfranchisement and the Constitution. Next week, it will be wheeled out as a response to the Massachusetts Court ruling. Don't believe the mollifying language of its backers. They mean business and they have gay couples in their sights.

This sums up Sullivan's position very well: the appeal to "states' rights" (in contrast with his view of the Lawrence case, to be sure) and the Constitution as well as the attempt to link his cause to that of the traditional Civil Rights movement, all buttressed and flavored with the accusation of raw bigotry.

Posted by Justin Katz @ 01:09 PM EST

4 comments

It seems to me that if Sullivan's dual support for Lawrence and opposition to a FMA is ireconsilable from a states-rights point of view, than surely the opposite must be true as well. If one is to oppose Lawrence on the basis of Federalism, than a Federal Marriage Amendment must also be unconscionable.

Are so-called conservatives willing to defend state's rights only when the states act against equality for gays, but cast the same considerations aside in the name of opposing the 'gay agenda' on a federal level?

Sean Kirby @ 07/12/2003 09:05 PM EST

Welcome, Sean.

On Sullivan's end the two are certainly "in contrast," as I wrote above. Inasmuch as he supported a federal mandate vis-a-vis sodomy, I'd say we on the opposite end are justified in wondering about his devotion to states' rights now, particularly considering that he has written before that he hopes for the day that the Supreme Court does the same for gay marriage.

For our part, proponents of the Federal Marriage Amendment have assessed the current situation as one in which the other side is intent on nationalizing the issue. It's a defensive maneuver, and one that will, as Mr. Ponnuru put it so well, leave "states with more running room than they'll otherwise have." Would we rather it be a legislatively determined state-by-state issue? I, for one, truly believe that our country and the entire world functions best to the extent that society pushes areas of disagreement down toward the community level. But that doesn't appear to be an option.

Justin Katz @ 07/12/2003 09:32 PM EST

Thank you for your speedy reply Justin.

Keeping the issue at a state level is an option as long you and yours allow it to be. What you propose seems more like the legislative equivalent of a preemptive nuclear strike, and it allows your side far too much leeway in shifting responsibility for the escalation to the other side (in this case, onto the person of Andrew Sullivan). I don't believe a constitutional amendment that involves a sweeping reallocation of powers to the federal government can be justified on the basis of preventing gay marriage advocates from taking their case to the Supreme Court.

Sean Kirby @ 07/13/2003 01:20 AM EST

Sean,

The first thing to clarify relates to a slight shift in language that makes a tremendous difference: it isn't the prevention of "gay marriage advocates from taking their case to the Supreme Court," per se, that justifies support for the FMA, but the high stakes involved in preserving the institution of marriage. Another aspect of the current reality that comes into play is the trend of courts' acting as a judicial oligarchy.

Surely, your characterization of a nuclear strike is hyperbole. The current argument is over the effect on states' right to institute civil unions, but I believe that Sullivan and Eugene Volokh are reading too great a restriction into the amendment. In that light, it's more akin to taking out a nuclear power plant being used as part of a nuclear program (if nukes are involved in the strike at all, they are limited, tactical ones). Should the strike not be made, the likelihood that an attempt to use the resulting bomb will be made nears 100%.

In Sullivan's case (and his visibility on this issue combined with his credibility among many conservatives make him an important case to address), he's been firing every concievable rhetorical missile at those who would argue against him, and even some that seem inconceivable.

Justin Katz @ 07/13/2003 08:45 AM EST