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Why Jonah Goldberg Should Support the FMA

I'm not sure what to make of Jonah Goldberg's writing on gay marriage. On one hand, although he believes (for some unsubstantiated reason) that "everyone agrees that we are well on our way to living in a country where allowing same-sex marriage is the law of the land," he laments that political considerations are almost certain to bring it about too quickly, by means of the courts:

But the federal and state courts are blazing ahead of the public and any chance of such compromises. As with abortion and affirmative action, both parties are so scared of seeming "divisive," they'd rather have an unelected judiciary make the tough calls for them. There's no easier dodge for a politician than "It's out of my hands." The end result is a public policy fait accompli, crafted and implemented without democratic input at any level.

On the other hand, he opposes the result of months and years of consensus building among those who share his opposition to court-imposed gay marriage: the Federal Marriage Amendment. I may be incorrect in the source, but it seems to me that Goldberg's been taken in by the (arguably deceptive) rhetoric of Andrew Sullivan. Consider this, from the first column linked above:

Marriage has a specific meaning: a union of a man and a woman. But the state shouldn't bar gays or anyone else from naming heirs or sharing property as they see fit.

What has gotten lost in this emotionally tangled wrangling is that gays aren't barred from doing either of these things. More germane to the discussion of the FMA, however, is Goldberg's "or anyone else." Despite his assertion that "many take ['legal incidence' of marriage] to mean civil unions as well," Goldberg need only read Ramesh Ponnuru's essay a couple of National Reviews ago to see that most of the disagreement — all of it, among those who oppose gay marriage — is about what types of civil unions the amendment will allow. Indeed, a sentence was recently added to the amendment to clarify that civil relationships can't be based on the presumption of sexual intimacy.

I've argued that states will still be able to pass civil union laws that include gender and consanguinity clauses, and it seems more than likely that the courts, as currently constituted, would allow those laws to stand. If this doesn't prove to be the case, then it wouldn't prove to be the case with any civil union laws. First of all, no civil union law could possibly exclude same-sex heterosexuals from entering into such arrangements; as Sullivan quipped with opposite intent:

How would a state legislature or the official granting civil union licenses know that? Short of putting videocams in people's bedrooms, they surely couldn't.

Second of all, same-sex family members would have to be included, as well. If the judicial system follows the logic of its own precedent on this issue (which, granted, may be a big if), then, in the language of the Massachusetts Supreme Court, a state would have no "rational basis" to exclude close family members, because there would be no chance of their conceiving a child. Simply put, also in the Mass. court's language, sexual orientation cannot be the basis for exclusion from a civil arrangement.

Another echo of Sullivan in Goldberg's latest column is that the marriage amendment would ban gay marriage "for all time." That's not true, and what makes it all the more jarring in this instance is that Goldberg immediately thereafter calls the FMA "a replay of Prohibition." The thing is: I went to a liquor store just yesterday and bought a case of beer. So much for "amendments are forever"! In the case of Prohibition, forever lasted just under fifteen years, at which time the twenty-first amendment repealed it. The main distinction, currently, is that Constitutional amendments have tended to be "progressive" — granting new rights or adding new specifics — whereas the FMA would solidify current law and require that the new rights that it forbids be granted by means of Constitutional amendment.

The fact of the matter is that the Federal Marriage Amendment will only do exactly what Goldberg wishes were the case without it: allow (force) the nation to take its time experimenting and debating. That he doesn't see this seems related to his unfair assumption that supporters of the FMA just want the whole debate to go away and think the FMA will accomplish that goal. Some may desire it to go away — although I'd suggest that many, many more supporters of gay marriage or undecided folks desire this — but they would be foolish to believe that it will.

About all the FMA does, if we take an objective view of it within the context of history, is state something that has been the law of the land all along and ensure that it does not cease to be the law of the land until a critical mass of Americans are convinced that a change would be for the better. This is what makes the other component of Goldberg's argument strike me as a bit odd:

I can't tell you what the unforeseeable consequences of such an amendment are because, duh, they're unforeseeable. But what I can predict with almost mathematical certitude is that the FMA will not make this issue go away. Rather, it will more likely serve to radicalize the anti-FMA forces in much the same way Roe vs. Wade radicalized anti-abortion forces.

Goldberg's own examples alone ought to give him reason to reconsider. Prohibition made illegal an activity that had been legal and that had deep roots in the culture. Actually, it wasn't so much an "activity" as a thing that became forbidden, and as such, the "radicalization" involved efforts to procure it. In contrast, does Jonah believe that the Mob will start performing gay marriages? If it does, then the mobsters won't be doing anything differently than what various religious and other organizations throughout the country already do. The marriages just won't be granted government recognition.

For its part, Roe v. Wade made legal a practice that had been illegal, and it did so in a way that disfranchised the large portion of the population that objected to it. As for radicalization, I have to wonder how much more radical supporters of gay marriage could become. The danger goes the other way on this one, I think. I know that the likelihood of judicial imposition of gay marriage certainly radicalized my views on the issue, and I worry about the extent to which it would radicalized others who start from a position of stronger opposition than did I.

That's not a threat, but it is a consideration. And considerations are all we have when addressing social and governmental change. Moreover, this is a change that will not remain unaddressed. In objecting to the only legally and politically feasible opposition to gay marriage, while acknowledging that the politics will ensure judicial activism, Goldberg has made himself objectively pro–gay marriage. Many Americans are reluctant to pick a side in this cultural battle, but I think that if Jonah Goldberg, for one, took some time to do additional reading and hard consideration, he would see that the FMA aligns with most of his proclaimed preferences.

Posted by Justin Katz @ 12:41 PM EST