Friday, June 2, 2006
The following piece by Jonathan Rauch, who writes for the Atlantic Monthly and is a columnist for the National Journal, is relevant to some recent MOJ postings. I thought that MOJ-readers would be interested.
National Journal
May 31, 2006
Gay Marriage Amendment: Case Closed
Senate Republicans trade federalism for demogoguery
Jonathan Rauch
All
right, so the Republicans have had better years. But don't forget their
secret weapon. Not an ABM, MIRV, or MX. An MPA: the Marriage Protection
Amendment, precision-targeted on same-sex marriage and, through it, the
Republican base.
The MPA would amend the U.S. Constitution to forbid gay couples to
marry. Senate Majority Leader Bill Frist, R-Tenn., says he will bring
the amendment up during the week of June 5. It has zero chance of
passing by the required 67-vote majority, as Frist knows. In 2004, the
amendment garnered only 48 Senate votes, and the Human Rights Campaign,
a gay-rights group, figures it will get only about 52 votes this year.
So why bother? Consider Virginia, where in 2004 the
Republican-controlled Legislature hit on the promising formula of
passing both a whopping tax increase and a gratuitously vindictive
anti-gay-marriage law. (The so-called Marriage Affirmation Act outlawed
not only gay marriage and civil unions, but also private contracts
between same-sex individuals seeking to replicate marital
arrangements.) Lyndon Johnson once said, "Hell, give [a man] somebody
to look down on, and he'll empty his pockets for you." The Virginia
formula was in that vein: Knock the gays hard enough, and maybe
conservatives wouldn't notice the tax hike.
In Virginia, the moral-values credit card seemed to have maxed out in
2005; Democrats held the governorship. Nationally, many conservative
voters seem to have noticed that the same Republican politicians who
are trotting out the marriage amendment have also spent up a storm,
created the biggest new entitlement program since LBJ's Great Society,
riddled the budget with earmarks, and approved unprecedented restraints
on political activity.
Whatever its political merits, the MPA remains as unwise substantively
as when it first came up in 2004. Since then, moreover, the case for
its necessity has disintegrated.
The question posed by the marriage amendment is not just whether gay
marriage is a good idea, but who should decide—the states or the
federal government? From its debut in 2001, the marriage amendment was
misleadingly advertised as a restriction on activist courts. In truth,
the amendment would strip the power to adopt same-sex marriage not only
from judges but from all 50 states' legislators, governors, and
electorates.
Defining and regulating marriage has been within states' purview since
colonial times. (Utah was required to ban polygamy while it was still a
federal territory. On the few occasions when the U.S. Supreme Court has
intervened, it has curtailed states' powers to restrict marriage
rights, not imposed a definition.)
Why should the federal government usurp the states' authority over
marriage? Amendment supporters have insisted that gay marriage anywhere
would soon spread everywhere. How, they demanded, could one state have
a separate definition of marriage without creating chaos? Unless the
federal government stepped in, they said, one or two states would
impose same-sex marriage on all the rest.
Actually, states have defined marriage differently for most of the
country's history. Until the 1960s, mixed-race marriages were
recognized in some states but not others. That each state is entitled
to regulate marriage in accord with its public policy views is
established legal precedent; otherwise Maryland, say, could start
marrying 10-year-olds and every other state would be obliged to go
along—an absurdity. Moreover, in 1996 Congress passed the Defense of
Marriage Act, which explicitly relieved the states of any obligation to
recognize other states' same-sex marriages.
Federal-amendment proponents have claimed that the Supreme Court might
strike down DOMA. That argument, already weak on the law (DOMA is
almost certainly constitutional), is even weaker now that President
Bush's two Supreme Court appointments, Chief Justice John Roberts and
Associate Justice Samuel Alito, have solidified the Court's
conservative majority. Would-be amenders are now reduced to claiming
that the Constitution should be revised to pre-empt a hypothetical
ruling by a future Supreme Court. On this prophylactic theory of
constitutional jurisprudence, it is hard to imagine what amendment
might not be in order.
So far, DOMA has stood up. The country's most liberal federal appeals
court, the California-based 9th Circuit, saw off a challenge to DOMA
just this month. Meanwhile, for more than two years Massachusetts has
been marrying same-sex couples, including couples who travel and move
outside the state. Spot the chaos? The wholesale legal confusion?
In fact, what is most remarkable about Massachusetts's gay-marriage
experiment is how little legal confusion and inconvenience it has
caused. As evidence that a state-by-state approach is unworkable,
proponents of a federal amendment can point to a messy Virginia
child-custody case and—well, not much else.
The social ramifications of gay marriage will take time to unfurl; but
if rampant legal confusion were going to be the result of
Massachusetts' gay marriages, it should have begun to appear by now.
Indeed, few defenders of a state-by-state approach would have dared
predict that the Massachusetts experiment would create as few legal
tangles as it has. That the states can go their separate ways on gay
marriage is no longer a prediction; it is a fact.
MPA supporters note that a court, and not the people, ordered gay
marriage in Massachusetts. That is true but not relevant. Congress has
no more business overriding state courts than it does overriding state
legislatures. If a state fears that its courts will order gay marriage,
it can change its constitution, which is exactly what 18 states have
already done and what as many as nine more will do in November. More
than half the states have statutorily banned gay marriage. A handful of
states—California, New Jersey, New York, and Washington are
possibilities—might wind up with judicially imposed gay marriage; the
large majority, it is now clear, will not.
In 2004, MPA advocates liked to say that pre-empting state legislatures
and electorates was of no practical consequence, because only judges
would support so alien a notion as same-sex marriage. That argument
expired last September, when the California Legislature passed the
Religious Freedom and Civil Marriage Protection Act, a bill legalizing
same-sex marriage. Republican Gov. Arnold Schwarzenegger vetoed the
bill, but the question is no longer academic: How do MPA proponents,
who claim to champion democratic decision-making, justify handcuffing
the democratically elected Legislature of the largest state in the
union?
At bottom, what many MPA proponents want to forestall is not judicially
enacted gay marriage; it is gay marriage, period. They say that an
institution as fundamental as marriage needs a uniform definition: a
single moral template for the whole country.
That argument would seem more compelling if marriage were more
important than human life. Many of the same conservatives who want the
federal government, not the states, to settle gay marriage also want
the states, not the federal government, to settle abortion. Sen. George
Allen, R-Va., for example, supports the MPA, but he would like to see
Roe v. Wade "reinterpreted" so that states would decide the fate of
abortion. Although the 2004 Republican platform calls for a "human life
amendment to the Constitution," you will look in vain for any such
amendment on the Senate floor.
Two questions for anti-gay-marriage, anti-abortion Republicans: If
states can be allowed to go their own way in defining human life, why
not allow them to go their own way in defining marriage? Where
constitutional amendments are concerned, why is preventing gay couples
from marrying so much more urgent than preventing unborn children from
being killed?
It is precisely because marriage is so important, and because it is the
subject of such profound moral disagreement, that a one-size-fits-all
federal solution is the wrong approach. California and Texas,
Massachusetts and Oklahoma take very different views of same-sex
marriage. By localizing the most intractable moral issues, federalism
prevents national culture wars.
In 2006, that argument is no longer hypothetical. Federalism is
working. As the public sees that states are coping competently and that
no one state will decide for all the rest, the atmosphere of panic over
gay marriage has mercifully subsided, providing the time and calm that
the issue needs.
The national Republican leadership's bid to upset this emerging
equilibrium is demagoguery, which is sad. Conservative politicians'
betrayal of federalist principles to distract attention from their
broken promises is cynicism, which is sadder. And none of this is
surprising -- which is saddest of all.
© Copyright 2006 National Journal
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