March 11, 2004, 8:47 a.m.
Waiting for Hatch
Will he introduce his own constitutional amendment on marriage?

Senator Orrin Hatch, the Utah Republican, has been toying with the idea of introducing an alternative to the Federal Marriage Amendment. Instead of banning same-sex marriage altogether, his amendment would leave that question, and questions about quasi-marital benefits for same-sex couples, to state legislatures. Until this point, the Hatch amendment has read, "Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman." If Hatch moves ahead with it, the words "and its benefits" will probably be added after "civil marriage" in the first sentence, to ensure that civil unions as well as same-sex marriage is a matter left to the state legislatures.

The idea behind the proposal is that it would be harder to attack than the FMA — it would be mostly immune, for example, to the charge of trampling on federalism — but would meet the threat of judicially imposed same-sex marriage that brought forth proposals to amend the Constitution in the first place. But the proposal is already being criticized, mostly from the social Right, and tactical uncertainty among its proponents may keep it from going anywhere.

The critics in the Senate are led by Rick Santorum of Pennsylvania, who prefers the FMA because it slams the door on the possibility of same-sex marriage. In a meeting of Republican senators Wednesday, Santorum was tough in his criticism of Hatch. Senator Sam Brownback of Kansas also weighed in, noting that social-conservative figure James Dobson is strongly opposed to Hatch's proposal. Mitch McConnell suggested that the wisest course might be to modify the existing FMA — striking its second sentence, so that it did nothing more than define marriage as the union of a man and a woman — rather than to replace it with Hatch's amendment.

So far, opponents have made four arguments against Hatch's amendment. (Not all of the below arguments, I should note, are made by Senator Santorum himself. Some of them come from Senate Republican staffers, including some who work for other senators.)

1) It would make it possible for a state legislature to authorize polygamy. This claim, made by some Senate aides, is untrue. It is already possible for a state legislature to legalize polygamy. There is no federal statute prohibiting it (and it is hard to see what the constitutional basis for such a statute would be). The only change that Hatch's amendment would make with regard to polygamy is to prohibit the courts from forcing recognition of it. It is hard to escape the conclusion that this charge is being made as a way of using perceptions of the religion that the senator shares with many of his constituents against him.

2) It would allow state legislatures to prohibit interracial marriage. This argument has popped up here and there in blogdom; if the Hatch amendment became a live proposition, it would no doubt feature heavily in the arguments of the liberal opposition. A response to it requires a quick trip into the weeds. The Supreme Court, more than 30 years ago, found in Loving v. Virginia that state prohibitions on interracial marriage violated the Fourteenth Amendment. The Hatch proposal would not overturn that decision.

The first sentence limits the ability of state courts to rewrite marriage laws: Anything they do can be put before the federal courts because it will implicate a power that the federal Constitution (as amended) will vest in the state legislatures. The second sentence limits the federal courts' ability to do one particular thing with marriage laws: namely, to rewrite them so that same-sex couples can apply.

So the question would be: Does the vesting of the power to define marriage with state legislatures in the first sentence bar the federal courts from reviewing the marriage laws for racial discrimination? There are two reasons for thinking that it does not. First, the existence of the second sentence suggests that the first sentence does not limit the federal courts at all. Second, Supreme Court precedent in other cases where the Constitution vests a power with state legislatures does not suggest that those legislatures are free to ignore other parts of the Constitution.

3) We need a national definition of marriage. This has been a popular theme of many conservatives. It's a major point of debate between same-sex marriage proponent Andrew Sullivan and opponent David Frum. I myself am inclined to split the difference. I can see a reasonable case for saying that it would be intolerable to have a "state-by-state" approach that, in practice, amounted to having state courts overrule the public will by recognizing other states' same-sex marriages. Worse would be a situation where, in the absence of a national definition of marriage, federal courts ordered states to recognize one another's same-sex marriages. But the Hatch amendment, if enforced, would prevent that kind of action by federal and state courts.

What I don't see is what the great harm would be — especially from the perspective of opponents of same-sex marriage — if one state recognized a same-sex couple as married and another state did not. Sure, there would be some thorny legal issues involved. But courts settle conflict-of-law disputes all the time. What we should not want is the settlement of such disputes becoming a pretext for the judicial export of same-sex marriage from one state to the others. The Hatch amendment would block that from happening. And there are some reasons for thinking that it has a greater likelihood of passage than the FMA.

4) A Hatch amendment would prohibit common-law marriages, or at least those that "flow solely from judge-made rules," and might even void existing ones. UCLA law professor Eugene Volokh has made this argument in several posts at volokh.com. It has the considerable merit of being correct. But in practice I doubt it would be much of a problem. A couple in a common-law marriage would retain the ability to go get a marriage license. Also, a legislature could simply pass a law retroactively validating existing common-law marriages.

In addition to these substantive arguments, there are political ones. Senator Santorum insists that the Hatch language would not be easier to enact than the FMA. Santorum, in the meeting yesterday, claimed that opponents of the amendment would cast the issue as one of civil rights. Hatch's anti-judicial campaign would be portrayed as akin to the resistance to Brown v. Board and other judicial breakthroughs for civil rights. It's a curious argument for Santorum to make. It's not as though the existing FMA has been immune to these very same charges.

Even assuming that senators see beyond the falsehoods and weak arguments of the other side, the Hatch amendment faces another obstacle: a debate among its proponents as to when is the right time to push for it. Some people want to bring the amendment to the floor only if the FMA is first brought to a vote and fails. But this strategy could backfire. If the Senate has voted down an amendment, will it really be possible to renew the interest of senators and the public in the issue? And will the media really be likely to educate the public in the differences between the proposed amendments?

I prefer Hatch's amendment to the FMA (or a stripped-down FMA) on policy grounds. Senator Hatch, on the other hand, seems to view the key question as what can actually get enacted. If his judgment is that his amendment can pass and the FMA can't, the time for him to act is now.

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