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.

Enter Stage Right -- http://www.enterstageright.com