NATIONAL DEFINITION OF MARRIAGE: Ramesh Ponnuru replies to Maggie Gallagher

Start here and scroll up (or here and scroll down to get the series in reverse): "I agree with several of Gallagher’s subordinate arguments, and in particular with her refutation of the claim that the definition of marriage has historically been a matter for the states. But I think her criticism of Hatch is largely mistaken."

"Part of the problem is that, like several defenders and opponents of the Hatch amendment, she regards it as a 'federalist' approach. It is more federalist than the Federal Marriage Amendment, because it leaves state legislatures with the legal authority to create same-sex marriage. But it is not a purely federalist amendment, because it restricts state courts. The thrust of the amendment is not to grant power to the states rather than the federal government so much as it is to grant it to (state) legislatures rather than (state or federal) judges." ...

"Now any case for a constitutional amendment on marriage has to begin with a suspicion of judges, or at least some important subsets of them. But this suspicion cannot become paranoia. If you are willing to assume that judges can do anything they want with any constitutional text, then there is no point to passing any amendment. Willful judges will be able to read Gallagher's preferred FMA in abstraction from its clear intent, too."

"...Alleged problem three: 'It won't protect defense-of-marriage laws from being overturned by a Supreme Court already signaling its interest in affirming same-sex marriage as a civil right.' Since Gallagher does not expand on this point, I’m not sure why we are supposed to believe it. As far as I can tell, she's wrong. ...

"Alleged problem four: 'Leaving the matter to the states amounts to conceding that marriage is not a key social institution.' I don't see this at all. Gallagher knows perfectly well that the failure to include a definition of marriage in the Constitution up until now was not a matter of Americans’ not understanding that marriage is a key social institution. It is necessary to include it now, on her account, because the institution faces a particular threat. But what is the nature of that threat? The reason advocates of an FMA have always given for why a constitutional amendment is necessary is that it is the only way to stop state and federal courts from redefining marriage. If an amendment other than the FMA can accomplish that goal, and indeed accomplish it better because it can actually be enacted, what’s the argument for asking an amendment to do more? ..."

"Finally, Gallagher says that there is no reason to switch amendments because support for the FMA is 'growing fast.' Maybe it's growing in the polls. But it is not growing much among senators. ...The 34 most liberal senators can stop any amendment they want to stop."

"...And if her political judgment is wrong, the question before her is this: Does she so desire a national definition of marriage that she is willing to fight a losing battle that lets the courts impose what she regards as the wrong one?"
posted by Eve at 8:01 PM | link

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