Federal anti-marriage amendment, fine-tuned

[mmcirvin]

The proposed Federal Marriage Amendment has had its language fine-tuned to avoid the most egregious stupidity for which I mocked it some time ago, and to allow legislatures to pass same-sex civil-union laws:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any state, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and woman.

But Jack Balkin, always the most interesting commenter on this issue, points out that the new language conceals a subtle trap: legislatures may only pass such laws if they are not doing it for constitutional reasons. Actually, it's even more bizarre than that: as I read it, it would invalidate a state constitutional amendment legalizing Vermont-style civil unions, yet allow a state law saying exactly the same thing. This seems contrary to the way governments are supposed to work around here.

In other words, it's still pretty dumb, and goes far beyond the goal most often stated by its proponents, that of preemptively constitutionalizing the Defense of Marriage Act's existing disavowal that a state law legalizing gay marriages would apply to other states or to the federal government. It's clearly aimed at the great conservative bugbear of "judicial activism" (that is, judicial activism applied to doing things that cultural conservatives don't like). But in the process, it even prohibits state legislatures from doing things that have effects that the FMA's backers claim not to oppose.

I tend to agree, actually, that it's better to have significant social changes ratified by legislative action than to leave them all to the courts. But this is actually a constitutional amendment that effectively prevents future constitutional amendments on the subject!

It's also worthwhile to step back a moment and marvel that the "civil unions" position, which was unthinkably outrageous a few years ago, is now so mainstream that conservative groups are trying to draft their anti-gay-marriage constitutional amendment to allow a state to take it. Personally, I don't actually like the idea of just legalizing same-sex civil unions; it's got an unfortunate separate-but-equal undertone to it. Also, I could see the existence of things-that-are-almost-marriage-but-not-called-that doing actual social damage to the institution of marriage, in direct proportion to how different they are from just being euphemisms for gay marriage. (This might even be part of what's going on in the European case studies that had Stanley Kurtz so exercised.) But it's still remarkable that civil unions would move from crazy utopian scheme to milquetoast middle-of-the-road compromise within a decade of American social evolution.

Comments

[arsonnick.livejournal.com]

Too rich. On a similar note, have you had the opportunity to glance at H.R.3920 (http://thomas.loc.gov/cgi-bin/query/z?c108:H.R.3920:) yet? It would allow congress to overturn a Supreme Court decision with a 2/3 majority vote of both houses. Nevermind the contradiction in Congress exercising implied powers (Article III, Section 2 was cited in the bill) to reign in judicial activism, the real potential for zaniness comes when SCOTUS strikes this law down on constitutional grounds, and congress overturns that decision, to which the Supremes respond by striking down the vote to overturn on the grounds that the bill allowing them to overturn decisions was unconstitutional, and so on. This could go on like this for years, until someone finall just takes their ball and goes home.

[mmcirvin.livejournal.com]

Yeah, as I've said before, my understanding is that Congress has tried to do that sort of thing more than once before, and if it actually worked, Earl Warren would have been eliminated in five seconds. I doubt that in this case it's actually going to produce an infinite loop, since, even if they do try to override the inevitable court decision striking down such a law, the necessary supermajority is unlikely to be available.