STANLEY KURTZ ON HATCH FMA

Senator Orrin Hatch may soon propose a constitutional amendment that would permit a state-by-state patchwork definition of marriage. (National Review has endorsed the Hatch alternative.) Some see this proposal as an embodiment of federalist principles; it is not. The notion that federalism permits or demands a hodgepodge definition of marriage fundamentally misunderstands the family's place in the structure of American democracy. This nation must have--and will have--a uniform definition of marriage.

It is true that, in our federal system, the states have a responsibility to regulate marriage. In accordance with the principles of federalism, the states can and should be permitted to regulate such matters as degree of consanguinity, age of consent, and the rules of divorce. Yet it is a categorical error to subject the essential definition of marriage to state regulation. The Founders did not understand either federalism or the family in this way. ...

Consider that the state of Utah was only admitted to the union on the condition that it would abandon polygamy. That precedent clearly shows that, when the fundamental definition of marriage was at stake, a uniform, national solution was deemed necessary and proper. To understand the place of marriage and family in American democracy, we must return to Tocqueville. Tocqueville saw marriage and family as one of several extra-political institutions on which healthy democracy rested: These extra-political institutions had the effect of countering dangerous trends toward excessive individualism, materialism, and state centralization.

We can see the truth of Tocqueville's insight when considering Scandinavia. The Scandinavian family has collapsed--and has been replaced by a massive, centralized welfare state. If the American family is dissolved by social redefinition of marriage, then just as Tocqueville predicted, we shall be subject to the "soft despotism" of a centralized bureaucracy. In Scandinavia, this has already happened. ...

As I showed some years ago in "The Right Balance," this country has never truly experienced a situation in which a substantial number of marriages were valid in only some states. Despite legal technicalities that may permit a state-by-state hodgepodge, in practical terms, states virtually never refuse to recognize marriages performed in other states. The reason is that, although technically permissible, a refusal of recognition would create an intolerable rift within the body politic, and would force intolerable injustices on individuals. What our history (from the Utah question, to the miscegenation issue, to the "public-policy exception") actually proves is that, even when legal technicalities might theoretically permit a patchwork definition of marriage, marriage continually shows itself to require national uniformity.

Yet even this does not fully describe what's at stake. In Tocqueville's terms, this is an issue of public mores. And on the most fundamental questions, public mores in the United States are shaped at the national level. ...There is simply no way, in the modern age, to confine the fundamental cultural meaning of marriage within the borders of one or a few states.

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posted by Eve at 6:20 PM | link

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