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 h,
now we're getting somewhere! In articles that I wrote recently in
The Wall Street Journal and on
this site, I've argued that the proposed "Federal Marriage
Amendment" — a national ban on same-sex marriage — is a broadside
against federalism, and that states should be allowed to go their
own ways. I suggested that the problem of activist federal judges
foisting one state's gay marriages on the whole country is easily
remedied with a narrower constitutional amendment barring them from
doing just that.
In his reply,
Arkes suggests "one more step: [Rauch] 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." OK, here's
the amendment:
Nothing in this or any state's Constitution shall require any
state to recognize as a marriage any union but that of a man and
a woman.
Dear Mr. Arkes:
How about it?
I've consistently
argued that gay marriage should be left to the states, both to allow
small-scale experimentation with what I believe will be good social
policy — good for gays, for straights, and for marriage itself —
and to prevent an all-or-nothing national culture war. I also believe,
as does Arkes, that gay marriage is too sensitive and important
to be left to judicial fiat. It should be decided by the political
branches.
In Vermont,
state judges effectively ordered up a civil-unions program. In Hawaii,
judges ordered same-sex marriage (the voters overruled them). Though
I don't know enough about either state's constitution to have a
good legal opinion, my knees jerk in the direction of thinking that
both sets of judges overreached. So, Arkes asks, how about a U.S.
constitutional amendment preventing state judges from foisting
gay marriage on a state? Would I support that?
No, because
I believe in federalism. I can't very well oppose, on federalist
grounds, stripping away states' power to pass same-sex marriage
while also advocating stripping away state courts' power to interpret
state constitutions. I may not have liked what Vermont's judges
did, but the question is whether Vermont should be allowed to have
a system in which the judges could do it. If the answer is no, then
people outside Vermont could wind up deciding how many chambers
the state legislature should have, whether state judges are elected
or appointed, how often the board of prisons should meet — you name
it.
I'm not saying,
pace Arkes, that states should be allowed to do anything
they want with family and marriage laws. They should not be allowed
to enact family laws that violate the U.S. Constitution, as the
anti-miscegenation laws did. But I don't believe that banning gay
marriage, as three dozen states have done, violates the U.S. Constitution,
and I also don't think that adopting gay marriage violates the U.S.
Constitution. Unless some federal prerogative is impinged upon (and
none was in the Vermont civil-unions case), reining in Vermont's
judges is the business of Vermont's voters. So I think the feds
should stay out. (I'm surprised to hear myself patiently explaining
all this to conservatives who are supposedly proponents of federalism.
Oh, well.)
Arkes, however,
already favors a constitutional amendment that would withdraw from
the states a power (to define marriage for state purposes) that
has been exclusively theirs since the republic was born. So he ought
to have no federalist qualms about the aforementioned amendment
banning judge-ordered gay marriage at both the state and federal
levels. I'll be surprised if Arkes accepts this amendment in preference
to the Federal Marriage Amendment, but I'd like to know. Finding
out would help clear away the Looking Glass rhetoric that Marriage
Amendment supporters are using in support of their proposal. Consider
the following statement by Arkes:
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."
I had to rub
my eyes when I read this. I had to read it three times. Arkes says
he'll take his chances with the states' electorates, and then in
the very next sentence quotes language that plainly, clearly, and
unambiguously takes the matter out of the states' hands. The amendment
says that no state can allow same-sex marriage even if every
voter and legislator in that state favors it. That the amendment
strips power not just from judges but from states cannot be rationally
contested.
I'm totally
perplexed. I know Hadley Arkes to be a bright and sophisticated
fellow, so I have to assume he understands the plain meaning of
his own amendment. If so, he and other Federal Marriage Amendment
supporters are indeed being disingenuous, as I charged in my Journal
article, when they insist that their federal ban on gay marriage
is nothing but a reining-in of unruly judges. In that case, who,
I wonder, is trying to "accomplish [their] move covertly"?
On the other hand, I also know Arkes to be an honest and estimable
fellow; and even if he weren't, the contradiction between what the
amendment does and what its supporters say it does is too glaring
to fool anybody. So perhaps Arkes and the others endorsed an overly
broad Federal Marriage Amendment because the idea of a narrower
amendment had not occurred to them.
If the latter,
I offer Arkes the chance to rectify his error by supporting an amendment
that would do exactly what he says he wants to do, no more and no
less. If he means what he says, he should support the ban on judge-ordered
gay marriage instead of the ban on state-approved gay marriage.
What do you say, Mr. Arkes? Surprise me.
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