Marriage Amendment

An argument against the Marriage Amendment at the Volokh Conspiracy and my response:

There are four main arguments against the FMA. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.

Is it possible to couch this “argument” in any more weasel words? Present state of relevant Constitutional doctrines make same sex marriage unlikely for foreseeable future. Forgive me if I don’t think these hollow assurances/blatherings from some law professor will keep a future supreme court from finding the penumumbras of emanations in the constitution mandating all states accept “gay marriage.”

Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.

Except that it isn’t, as Steve T pointed out with regard Utah’s statehood.

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.

Going through the process of amending the constitution to preserve the unique status and importance of marriage to our nation and society is undemocratic? This “argument” is nonsensical.

Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.

This argument is the same as the first one, in that it assumes that future courts won’t do with gay marriage what Berger et al did with abortion. The only thing that will prevent gay marriage in the US is to write a prohibition to it in the constitution in unambiguous language. Arguing otherwise shows cluelessness or disingenuousness about jurisprudence in America in 2006.

Make no mistake, given current legal scholarship and supreme court interpretations, supporters of marriage have lost this debate. There is no legal justification not to call a contract between two men a marriage. You can be sure, in our lifetimes, this will come to pass. Unless we enact a constitutional amendment to remove marriage from interpretation by the courts, gays will be allowed to “get married” and enjoy the benefits that society has heretofore conferred on married couples. Absent this amendment, in twenty years, when we have a culture replete with gay marriage, polygamy, group marriages, and men marrying their grandsons to control inheritance, we will wonder how we got to this point. Or, more tragically, we won’t ask any questions at all, accepting those contracts as normal, and instead, wonder why society has gone to hell.