A Ban We Don't (Yet) Need
On Wednesday the Senate fell 18 votes short of the two-thirds majority that would have been required to pass a constitutional amendment banning gay marriage. The mainstream media joined Sen. Edward Kennedy in calling the entire debate a distraction from the nation's business and a wedge with which to divide Americans.
Since the main business of Congress is to devise ever more ingenious ways (earmarked and non-earmarked) to waste taxpayers' money, any distraction from the main business is welcome. As for dividing Americans, who came up with the idea of radically altering the most ancient of all social institutions in the first place? Until the past few years, every civilization known to man has defined marriage as between people of opposite sex. To charge with "divisiveness" those who would do nothing more than resist a radical overturning of that norm is a sign of either gross partisanship or serious dimwittedness.
And that partisanship and dimwittedness obscured the rather interesting substance of the recent Senate debate. It revolved around the two possible grounds for the so-called Marriage Protection Amendment: federalism and popular sovereignty.
· Federalism. When one state, such as Massachusetts, adopts gay marriage, the full-faith-and-credit clause of the Constitution might reasonably be applied to require other states to recognize such marriages, and thus essentially force it upon the rest of the nation. Federalism, however, is meant to allow states the autonomy of social experimentation (as with Oregon's legalization of assisted suicide) from which other states can learn. It is not intended to force other states to follow.
But it turns out that the Massachusetts experiment has not been forced on other states. No courts have required other states to recognize gay marriages performed in Massachusetts. Gay activists have not pushed it, wisely calculating that it would lead to a huge backlash. Moreover, Congress's Defense of Marriage Act (DOMA) explicitly prevents the state-to-state export of gay marriage.
Should DOMA be overturned, that would justify a constitutional amendment to prevent one state from imposing its will on the other 49. But it has not been overturned. And under the current Supreme Court, it is unlikely to be. The Marriage Protection Amendment is therefore superfluous.
That leaves justification No. 2:
· Popular Sovereignty. Gay marriage is a legitimate social issue to be decided democratically. The problem is that imperial judges are legislating their personal preferences, striking down popular will and calling it constitutional law.
Most notoriously, in Massachusetts a total of four judges out of seven decided that the time had come for gay marriage. More recently, in Georgia and Nebraska, judges have overturned (state) constitutional amendments banning gay marriage that had passed with more than 70 percent of the vote.
This is a rerun of the abortion fiasco: judicial fiat that decades later leaves the issue roilingly unsettled and divisive. This is no way to set social policy in a democracy. So why not have a federal constitutional amendment and smite the arrogant solons of Massachusetts, Nebraska and Georgia, and those yet to come, all at once?
Because it is an odd solution for a popular-sovereignty problem to take the gay-marriage issue completely out of the hands of the people. Once the constitutional amendment is passed, should the current ethos about gay marriage change, no people in any state could ever permit gay marriage.
The amendment actually ends up defeating the principle it sets out to uphold. The solution to judicial overreaching is to change the judiciary, not to undo every act of judicial arrogance with a policy-specific constitutional amendment. Where does it end? Yesterday it was school busing and abortion. Today it is flag burning and gay marriage.
It won't end until the Constitution becomes pockmarked with endless policy amendments. The Constitution was never intended to set social policy. Its purpose is to (a) establish the rules of governance and (b) secure for the individual citizen rights against the power of the state. It defaces the Constitution to turn it into a super-legislative policy document.
In the short run, judicial arrogance is to be fought democratically with the means still available. Rewording and repassing the constitutional amendment in Georgia, for example. Appealing the Nebraska decision right up to the Supreme Court, which, given its current composition, is extremely likely to terminate with prejudice this outrageous example of judicial interposition.
In the longer run, it means having Supreme Courts that routinely strike down such judicial imperialism. And that means electing presidents who nominate John Roberts and Sam Alito rather than Stephen Breyer and Ruth Bader Ginsburg.
True, this does nothing about today's judicial usurpation in Massachusetts. But that is the problem of its good citizens. If they want to, they have the power to amend their own state constitution. In the meantime, Massachusetts remains quarantined by DOMA.
Therefore, there is no need (yet) to disfigure the U.S. Constitution with a policy amendment.