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 onathan
Rauch, ever thoughtful, ever artful, has displayed the art of the
illusionist as he has shaped an
argument against the Federal Marriage Amendment, proposed by
the Alliance for Marriage ["Leave Gay Marriage to the States,"
Wall Street Journal, and now in his response to Stanley
Kurtz, on National Review Online, on August 2] With a certain
bravado he has warned of the constitutional vice of shifting questions
of marriage and family law from the traditional jurisdiction of
the States and bringing them under the imperium of federal law.
But by casting the problem in that way, he deftly draws attention
away from the fact that the political strategy of his friends, the
gay activists, depends thoroughly on the design of removing these
legal issues to the forum of the federal courts. The law
in Virginia once barred marriages across racial lines, and when
the Supreme Court struck down that law in 1967, was that not a move
to trump the local law on marriage with the law of the federal Constitution?
And did we not find the same federal overriding of family law when
the Court struck down a scheme of assigning children on the basis
of color in dealing with divorce, and settling custody, in mixed
racial marriages? If we take Jonathan Rauch at his word, he evidently
thinks that the refusal of the states to encompass "same-sex"
marriage represents a species of wrongful discrimination — on the
same moral and legal plane as discriminations based on race. Would
we not have to believe then that Mr. Rauch would of course support
this move to challenge these laws in the federal courts, in the
way that the laws on miscegenation had been challenged in the past?
And if the courts gave him the result he regards as just, would
that not amount to a federal revision of the laws on marriage —
as surely as any change brought about in a constitutional amendment?
In Vermont,
the legislature has provided an arrangement of "civil unions"
for couples of the same sex. But from Vermont has come the news
that most of the couples arranging those unions have come from outside
the state. By the middle of July, there had been 2,258 "civil
unions," and of them, 1,795, or about 80 percent, involved
people outside Vermont. The intention should be quite transparent:
Since these unions are not recognized in their home states, these
couples evidently intend to go into a federal court and invoke the
Full Faith and Credit Clause of the Constitution [Art. IV, Sec.
1]. That clause leads us to presume that the marriage performed
in Kentucky will be honored in Massachusetts. But activists are
counting on that clause now as an engine for "federalizing"
marriage — for extending same-sex marriage through the whole federal
system as soon as it is installed in one state. As Mr. Rauch points
out, the Defense of Marriage Act of 1996 sought to shore up the
authority of the states to enter moral objections to certain kinds
of marital unions (e.g., the incestuous) and refuse then to honor
anything other than the marriage of a man and a woman. But Mr. Rauch
clearly knows that when a state refuses to honor a "same-sex"
marriage, the activists are preparing to challenge that decision
in a federal court and invoke other parts of the Constitution (most
likely, the Fourteenth Amendment and "the equal protection
of the laws').
Rauch also
curiously omits any mention of Romer v. Evans in 1996,
even though the activists are surely counting on that case to undermine
the traditional authority of the states to withhold their recognition
of same-sex marriage. In that case, the Supreme Court struck down
the attempt by voters, in a referendum, to withhold from local governments
the authority to pass laws that barred discriminations based on
sexual orientation. In striking down that referendum, the Court
suggested that the opposition to gay rights reflected an irrational
"animus." The lesson arising from that case was that it
was no longer legitimate for a state to incorporate in its laws
any understanding that homosexuality stood on a lesser plane of
legitimacy than that sexuality "imprinted in our natures."
And if that sentiment carries over, the courts may deny to the states
the authority to hold back, on moral grounds, from recognizing gay
marriage.
Mr. Rauch ought
to say then, with that other wizard, "pay no attention to the
man behind the curtain" — the one who is depending on a strategy
of invoking the federal Constitution to override the laws in the
states, even while he warns gravely about the wrongness of making
marriage the business of the federal Constitution. Could it be,
though, that he is falling back on that older trick-of-the eye?:
That somehow we never seem to think that the federal courts are
part of the federal government? It is only with an odd assumption
of that kind that we hear people persistently say that the federal
government should have nothing to do with abortion — while the federal
courts must be free of course to address the issue of abortion in
all of its dimensions.
But this trick
of the eye works in another way for Jonathan Rauch: He says that
we should "[let] the States go their separate ways," and
that "same sex marriage could be tried in a few places where
people feel comfortable with it." And yet, he neatly avoids
ruling out the possibility that the states will go their separate
ways, not because the voters will support same-sex marriage, but
because the scheme is imposed by the courts, as it was in Vermont.
For our own part, in the Alliance for Marriage, we are willing to
take our chances with the electorate in the different states. The
amendment simply reads: "Marriage in the United States shall
consist only of the union of a man and a woman. Neither this constitution
or the constitution of any state, nor state or federal law, shall
be construed to require that marital status or the legal
incidents thereof be conferred upon unmarried couples or groups."
[My italics.] Rauch probably knows that our proposed amendment has
been criticized by some conservatives precisely because it leaves
open the possibility that legislatures will grant legal recognition
to partners of the same sex. Our hope is that, when people and legislators
absorb the principle behind the amendment, they would not seek to
offer, in that way, a counterfeit of marriage. We would oppose those
devices to offer marriage under another name, but we would be prepared
to debate the matter state-by-state, for a critical authority would
indeed remain in the separate states to legislate on this issue
in many ways.
The hard fact
of the matter is that both sides find it necessary to make an appeal
to the Constitution. As long as the Full Faith and Credit Clause
remains in the Constitution, along with the clauses on Equal Protection
and Privileges and Immunities, the Constitution itself will act
as an engine to "federalize" the issue of marriage by
bringing the matter into the federal courts. The difference between
the two sides is that Mr. Rauch's friends intend to accomplish that
move covertly. With a concert of 12-15 federal judges, they may
simply impose their policy. On our side, we would seek a wider deliberation,
among the American people and their representatives, before a policy
on marriage is installed. The point has been argued in the past
that we did not strictly need constitutional amendments to do away
with slavery, establish citizenship for the former slaves, and confer
upon them the right to vote. But an earlier generation passed the
13th, 14th, and 15th amendments for the sake of taking these matters
out of the hands of the judges who had given us the ruling in the
Dred Scott case, and denied that blacks could claim any of these
rights. And by securing those rights as part of the fundamental
law, the Republican leaders sought to place those rights beyond
the play of majorities shifting with the political seasons. In the
current crisis, we have been compelled to take the same route in
order to prevent a coup by judges at the state and federal level.
Many of those
judges have shown a breathtaking willingness to assume for themselves
the power to remodel the very matrix of our laws on the beginning
and ending of life, on marriage and the family and the meaning of
sexuality itself.
Our position
has been that on matters that would remake the foundations of our
laws, the decisions ought to made in the way that the Constitution
itself maps out the plan for altering the fundamental law. By that
plan, the "marriage amendment" could not succeed unless
it draws a wide support among the people and their legislatures,
and before it could do that it would have to set off an argument
that ripples through the entire country.
That is the
part of federalism that Jonathan Rauch has cagily held back from
embracing, even as he offered a heartfelt plea for federalism. He
has added to the debate a new twist of subtlety with his offer to
shape the Defense of Marriage Act as a constitutional amendment.
In that way, the federal judges would be barred from imposing same-sex
marriage, and the matter would seem to be left to the states. But
once again, the art of the illusionist has worked to conceal the
decisive things that Mr. Rauch has left unacknowledged, and mainly
concealed. It is worth taking account of them here:
— He no longer
suggests that it is the product of an overheated imagination to
seek a constitutional amendment on this issue. He implicitly concedes
that an amendment is plausible, and that is precisely because the
gay activists are gearing up at all levels to bring this issue into
federal courts. And, very critically, he does nothing to disown
those moves. They may not be his own choice, but he will not rule
them out in principle. Therefore, with his reticence on this point,
he confirms precisely the danger that has been cited by the Alliance
for Marriage as the reason that brings forth this proposal for a
constitutional amendment.
— Rauch has
still left open the possibility that the decision in the states
will not be made by the people or their representatives, but by
judges, who now find, in their own constitutions, a principle of
equality that majestically sweeps aside any denial of same-sex marriage.
His proposal blocks out the federal judges, but still leaves the
possibility of a coup staged by the local judges. What he might
do is take one more step: He could add to his amendment a denial
that anything in the constitutions of the separate states may be
construed to require same-sex marriage. If he took that step, we
might indeed have the grounds for a settlement. But with that step,
he would have backed into our own position: for he would now accept
a process in which this matter will be argued out in the political
arena and not settled in the chambers of judges.
Would it be
indecorous to point out to Jonathan Rauch that we have reached this
point of shadowboxing over a constitutional amendment precisely
because of the games that his friends have been playing in the courts
— with the same feints reflected in his own pieces. We will leave
to another time the account of why marriage simply could not preserve
its coherence and durability if the notion of marriage were stretched
out of shape to encompass same-sex marriage. We have already seen
the claims emerging for polyamorous groups, whose loves are not
confined to couples. and indeed, once we admit gay marriage, we
would not stand on any principled ground for confining marriage
to two people — or fending off the claims for all of the exotic
ensembles of people who insist that their love, too, ought to recognized
in a marriage.
I have had
an esteem for Jonathan Rauch as a person and a writer, but I fear
that he has been undone by his own cleverness. By design, he used
his opening line in the Wall Street Journal to denounce the
"disingenuous" — and then went on to make of the disingenuous
a high art. But by engaging the issue seriously, in a public discourse,
he might have wrought even better than he knew, for he has now confirmed
precisely our sense of the way in which this issue ought to be played
out under the Constitution.
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