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A possible alternative to the federal marriage amendment

By W. James Antle III
web posted July 12, 2004

Months after San Francisco Mayor Gavin Newsom and the Massachusetts Supreme Judicial Court made their headlines, Congress is now preparing to weigh in on the issue of gay marriage. The debate revolves around a proposed constitutional amendment that would reaffirm the traditional definition of marriage as a union of a man and a woman.

For a variety of reasons that would require a separate article to fully explain, I think this definition is worth preserving and therefore hope the sponsors of the federal marriage amendment succeed in their efforts to fortify the Constitution against a judicial transformation of matrimony. But I wouldn't bet the Chapel of Love on it.

By now this routine should be familiar to conservatives. Federal courts, eventually all the way up to the Supreme Court, come up with novel new interpretations of the Constitution that conveniently empower judges to advance a progressive social agenda. Conservative politicians give angry speeches denouncing these rulings and promise to reverse them through constitutional amendments. The amendments in question ultimately go nowhere.

Think of all the issues conservative politicians have tried to resolve through constitutional amendments that have more or less followed this trajectory: abortion, prayer and Bible-reading in schools (later broadened to "religious freedom" in the mid-1990s), term limits. A possible amendment to stop forced busing was floated in the 1970s. Not one of these amendments has been successful.

Organizations spring up to lobby for most of them. Congress occasionally votes on them. The Republican Party endorses them every four years in its platform. But none of these wished-for amendments ever end being tacked onto the Constitution.

Unsatisfactory as this seems, there are many people who benefit from this arrangement. Conservative groups get to tout their efforts on behalf of these amendments in their fundraising letters. Members of Congress can brag about their periodic votes for them. Judges continue to be able to make the most important decisions on these controversial issues that a lot of elected officials would prefer not to have to deal with anyway.

Of course, it is also true that many honorable and well-intentioned people honestly and wholeheartedly support these amendments and work very hard for their passage. I'm just afraid that they have little to show for their efforts.

I'd like to think that the FMA will be different, but there are ample reasons to doubt it. Sure, a majority of Americans still opposes gay marriage. Even larger majorities support school prayer, but no school-prayer amendment has ever made it out of Congress to be sent to the states for ratification. Proposed amendments allowing congressional term limits, requiring a balanced federal budget and banning flag burning have all had similarly high levels of public support and all have failed in Congress.

Even if Republicans were united behind the FMA, marital traditionalists would need significant Democratic defections to get to the two-thirds mark in both houses of Congress. As it happens, many Republicans appear to be reluctant to support a constitutional amendment. Some are genuinely and admirably hesitant to tinker with the Constitution, especially to accomplish social-policy goals. Others are merely averse to taking any firm action on a controversial issue like the definition of marriage. The end result is that in the Senate alone, amendment supporters may need to win at least 20 Democratic votes to have a reasonable shot at passage.

In order to win these votes, it is possible that divisions over competing versions of the FMA may come into play. Efforts to amend the Massachusetts constitution to reverse the courts' tinkering with marriage became bogged down in the debate over civil unions (the version that finally won initial passage creates civil unions, a move most national social-conservative organizations, who would be crucial in winning FMA ratification, strongly oppose).

On the other hand, the desire to stand with the majority on same-sex marriage in an election year could possibly carry the day in the end. But if it doesn't, maybe it's time to rethink the approach. The FMA and all the other previously mentioned conservative amendments share a common attribute: Every time the judiciary achieves a liberal political objective through rulings that bear little resemblance to the Framers' original intent or the widely agreed-upon interpretation of the Constitution for most of our history, the right responds by trying to pass a constitutional amendment.

Instead of dealing with each judicial usurpation piecemeal by fighting an uphill battle for a constitutional amendment, maybe the people's elected representatives should reassert their constitutional prerogatives. Perhaps Congress should use its power under Article III of the Constitution to regulate the jurisdiction of the federal courts. This is not an idea unique to me – conservative commentators ranging from Pat Buchanan to National Review's Ramesh Ponnuru have advocated it in recent years.

Professor William J. Quirk of the University of South Carolina School of Law, writing in the June 2004 issue of Chronicles, argues that Congress should again pass the Defense of Marriage Act, adding one sentence: "This law is not subject to review by the lower federal courts or the U.S. Supreme Court." This could be done by a simple majority vote in both houses, with the signature of George W. Bush.

After all, a strong bipartisan majority of Congress and then-President Bill Clinton thought the issue settled when DOMA was enacted in 1996. The reason it isn't and that a uniform national rule along the lines of the FMA is being contemplated is that the Supreme Court's rulings in Romer v. Evans and Lawrence v. Texas foreshadow the eventual invalidation of DOMA based on disputable jurisprudence.

Since there is no recent precedent for Congress exercising such a constitutional check on federal judicial power, the courts and elements of the political class can be counted on to resist fiercely. Conservatives in Congress have probably been reluctant to take this course of action precisely to avoid the showdown between the branches that would likely ensue.

But the FMA debate also sets the stage for a protracted political conflict. Some amendment opponents have promised to out closeted gays who vote in favor. Writing in the Washington Blade, one D.C. activist offered the following argument for outing even gay staffers of pro-FMA congressmen: "The FMA is the legislative equivalent of a nuclear bomb… Facing such an unprecedented threat, it is time we considered an unprecedented response."

At first, it is difficult to imagine why this would be the case. After all, the FMA would merely preserve the legal status quo on marriage – while gay activists' opposition is understandable, what makes the "threat" unprecedented?

The answer appears to be the perceived permanence of a constitutional change combined with concerns that the amendment would have unanticipated effects on existing public and private benefits for gay couples. As adamantly as these activists oppose DOMA, neither claim applies to the law as it currently appears on the books. And while proponents of gay marriage would no longer be able to advance their cause through federal courts, they would still be able to press for statutory changes in Congress and on the state level rather than seeking the repeal of a constitutional amendment.

Perhaps we have ceded divisive cultural issues to judges for so long that limiting federal court jurisdiction will seem too radical for most people. It's possible that it will be viewed as impractical to take this approach in the middle of such an emotional debate. But if the FMA ends up facing the same fate of interminable conflict as the human life amendment and so many other conservative-backed constitutional amendments before it, a statutory check on the judiciary just might be an alternative worth thinking about.

W. James Antle III is an assistant editor of The American Conservative and a senior editor for Enter Stage Right. The views expressed above represent his alone.

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