Among its other defects (see links gathered here), this misbegotten proposal would impose a single federalized outcome on states and localities which currently take widely differing views of same-sex marriage. Some FMA advocates have sought to depict the federalist objections to the amendment as mere makeweight and window dressing — tactical objections by opponents who dislike the proposal for its substance and are merely casting about for arguments against it. One hopes these advocates were suitably chastened in March when James Q. Wilson, doyen of conservative policy analysis, announced his opposition to the amendment citing exactly these federalist grounds:
The states should also decide about gay marriage. Some conservatives are urging Congress to propose a constitutional amendment banning this, but this would be a mistake. People should vote on this matter and about the conditions of life they wish to experience where they live. Though I oppose gay marriage, voters in some states may approve it. If they do, we will have a chance to learn what it means in practice, with the costs and benefits falling on people who have accepted it….
The rising demand that every personal preference become a constitutional right is a worrisome disease. People, of course, do have rights; the Constitution and the first ten amendments spell most of them out. That document defines the essential requirements of life and liberty. Adding new invented rights by either a ratified amendment or judicial overreaching is a mistake.
(WSJ, Mar. 18, reprinted at AEI site). More: Jonathan Rauch, Dale Carpenter’s new paper for Cato, Julian Sanchez (& welcome Volokh, Sullivan, Independent Gay Forum readers).
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Another prominent conservative against a federal marriage amendment:
You’ve already got the publicly stated opposition of prominent conservatives like Bob Barr, Dick Cheney, Chris Cox, Bruce Fein, John McCain, Ramesh Ponnuru, George Will, and others (not to mention several VC bloggers). Now you c…
No. Those who, like me, reluctantly tilt toward the FMA aren’t chastened by Wilson’s federalist objection (nor by the similar objection by Ramesh Ponnuru, another commentator whom most on the right think well of).
What matters to us is that the federalist arguments made by gay rights advocates (and their litigation teams) are a bunch of opportunistic hooey. Wilson and Ponnuru mean it, but Howard Dean, Hillary Clinton, and the Human Rights campaign don’t. While saying “let the states decide” (an odd claim, given that they often equate gay marriage proscriptions with interracial marriage proscriptions), they pursue a litigation strategy that is aimed at forcing gay marriage on all fifty states. That’s fine. For them, it’s a matter of (universal) justice. But many are simply lying that they will be fine if 8 blue states have gay marriage, and 42 states do not. They want a series of federal court decisions, then they want to say we must accept the “rule of law.” Then, they’ll characterize any post-decision amendment to be completely wrongheaded.
And, of course, just possibly, to learn that nothing bad happens and you were wrong to oppose it.
As a conservative, the FMA is a terrible idea. The only federal issue here is whether DOMA can withstand a constitutional challenge under the Full Faith and Credit clause. If DOMA is overturned, that is the time for a constitutional amendment to preserve states’ rights in this area. Pushing the FMA will ultimately backfire as an example of what went wrong with the conservative movement.
There IS no federalism problem with Amendments to the Constitution. LAWS (such as DOMA) have federalism problems. Consitutional Amendments do not. Se the… darn, having a brain fart. Whichever Amendment it was after the Civil War that made the Federal Government able to enforce people’s Consitutional rights even against state action (14th? ARG! Can’t remember…).
Also, Tim Schulz has it exactly right. They’ll bring out the federalism argument until they think they can get SCOTUS to force gay marriage on everyone else. Then, if you bring up the federalism issue, they’ll laugh in your face.
Oh, and this:
“Adding new invented rights by either a ratified amendment or judicial overreaching is a mistake.”
Is ENTIRELY wrong. Well, part of it is right (judicial over-reaching), but the other part is COMPLETELY, UTTERLY wrong. An amendment to the Constitution is EXACTLY and EXLUSIVELY the way to do that, if you want it done. Perhaps he meant that adding rights in general was a mistake, but that’s not what he said.
Some of these comments illustrate the absurdities of the Amendment and its advocates. But this claim: “force gay marriage on everyone” is total folly.
First, marriage is not orientation-specific, except by law that makes it privileged. Marriage, qua marriage, is simply marriage, neither gay nor straight, green or blue, black or white, religious or secular, but is itself its own genus of a legal institution.
In a pluralistic liberal democracy, “inclusion” would replace “exclusion,” otherwise nothing changes. Rather than “closing” the privilege to straights only, inclusive-marriage would “open” marriage to include gays and lesbians. That would materially affect gays and lesbians currently excluded, but would have no impact on straights already included.
Only special-interest laws through tyrany of the majority give marriage its character of “exclusion” for “straight only.” This situation is entirely analogous to “white only” facilities during segregation, or “paying members only” with respect to country clubs.
“Opening membership” to include others previously excluded does nothing to existent members. Certainly, the existent members are not “forced” into anything, save perhaps fairness, equality, and justice.
So, the preposterous notion that “gay marriage” is being “forced on the rest of us” is entirely incoherent nonsense. Rather, marriage, presently restricted, like segregation and many country club memberships, would be “opened” to include, rather than “closed” to exclude, without “forcing” anyone into anything, and certainly not altering existent privileges. The only change is embracing a wider constituency to share in America’s promise.
Two guys or gals marrying would have no impact on the guy-gal model already in play, and the notion of anyone being “forced into gay marriage,” a totally incoherent and vacuous phrase, is as ludicrous as it is absurd. Sadly, this kind of incoherent, irrational, and privileged thinking remains stubbornly persistent as it is thoroughly impoverished.
Even worse, arrogantly preferring exclusion over inclusion is the antithesis of equal application and due process, by privileging the dominant class over the dominated class, repudiates basic American principles and thereby undermines all Americans’ access to “life, liberty, and the pursuit of happiness.”
Blacks, poor, atheists, and queers know this perversion of thought only too well. We are no longer content to tolerate it.
The people arguing for a ban on gay marriage are the same ones who would have supported a ban on interracial marriage. Let’s not pretend prevention of either is based on anything other than fear and intolerance presented as pragmatism. It is an insult to those who still have a capacity for empathy.
Sepsis,
Name-calling is a logical fallacy. Come back when you have an argument.
The Gay Species,
First, see above about name-calling.
Second, the “forced into gay marriage” bit is quite obvious in both meaning and intent, and you know exactly what it means. Claiming it means something else (and completely ridiculous) is also a logical fallacy, the “straw man” argument.
Just in case someone is reading this who has entirely drunk the Koolaid, the meaning of “forcing it on the rest of us” is imposing somthing new by judicial fiat, suddenly “finding” new maning in laws and constitutions that are over 100 years old and well-read by many, mnay people. This is, quite simply, twisting language to mean what the judge in question WANTS it to mean. Whether one agrees with the OUTCOME of any particular case (Roe v Wade, for instance), the MECHANISM is horrible and prone to abuse (in either direction, by whomever happens to get a dishonest judge who agrees with them).
Also, same-sex marriage is fundamentally different from inter-racial marriage in that “race” is almost exclusivly a social construct, with no actual boundaries – it’s possible to line up a group of people so that the person at each is end “obviously” white or black, yet no on person in the line is detectably a different “race” than either person next to them. Sex is an inherent dichotomy of the human race, as shown quite simply by the reproductiv process.
Speaking of which, marriage, while sorely abused the last 30ish years, is given finacial benefit and social deference because society benefits from the production of good citizens, and marriage has been shown repeatedly both by history and in the modern day by scientfic study to be the best (ON AVERAGE) way to do that. Marriages produce more children, and the children they produce are better citizens (again, ON AVERAGE) than any other method yet discovered.
Attack #1: marriages with no children, or which obviously nver can produce children (two 100-year-olds marrying, for instance). Response: come up with better “bright line” method to delineating who can get married.
Attack #2: “It’s not FAAAAAAIIIIIRRRRRR!!!!!!!” Tell it to the aborted fetus, or the guy who spent 20 yars in prison wrongfully convicted, or the person both with no limbs.
When it comes to the privacy of your own home, society has basically said, hey, do whatever, have a good time, yay for you.
You do not need our PERMISSION.
But
You have no right to our APPROVAL.