Sen. Orrin Hatch is on record supporting an FMA defining marriage as the union of a man and a woman. I certainly did not intend to trash him. I do think the merits of the alternative language deserve a thorough airing.
Ramesh and I simply disagree on the cultural, political, and legal implications of shifting the Constitutional debate from “save marriage” to “leave it to the states.” Ramesh’s certainty in how the Hatch language will be interpreted by courts (a.k.a. what it “really” means) is touching, but I just don’t share his faith. I think he is just plain wrong in describing, for example, questions raised about how Hatch language would interact with federal jurisprudence on marriage (such as Loving v. Virginia) as the spreading of “false” ideas. The actual reality is the legal consequences are uncertain, given the complexity of marriage as a legal idea and especially given the judiciary’s flagrant lack of regard for framers’ intent. The uncertainty and the complexity of the Hatch proposal legally will make is far less politically viable ultimately than an FMA with a clear and simple message, like: Marriage in the United States shall consist only of the union of a man and a woman.
All the time we will have to spend combating the “false” ideas generated by the Hatch language is time not spent talking about marriage, which is the issue which actually motivates voters.
I think (Ramesh disagrees) that if marriage really is a key social institution, defining it in the Constitution is no more anomalous than the many property guarantees, and the guarantee of democratic government, already in the document. (Ramesh must be one of the few Constitutional observers not to see property and other economic guarantees in the Constitution).
I think (Ramesh disagrees) that changing the topic from marriage to federalism naturally implies that federalism is the more important issue, marriage is the less important one. When political leaders are talking about the states’ right to disagree about the definition of marriage, and not the need for a shared, common culture of marriage, that’ will be the natural conclusion.
Moreover on some issues, the house really won’t stay divided. If marriage matters, a highly visible group of people can’t be married in Massachusetts and unmarried (or charged with bigamy for marrying again) in South Carolina. The same internal logic that produced almost identical divorce laws in all 50 states, will produce a common national definition of marriage.
The question remains: which one?