David Horowitz has now, unsurprisingly, come out against a Federal Marriage Amendment. That may or may not be the correct position to take, but Horowitz’s reasoning strikes me as poor. He regards the FMA as “Roe. . . in reverse,” in that it federalizes an issue previously reserved to the states, and seeks to take an issue previously contested and settle it once and for all in the Constitution. The attempt, he writes, will be a disaster for the durability of the Constitution. Conservatives, he writes, should not promote “the radical idea that rewriting the Constitution is a handy alternative to winning American hearts and minds and resolving these conflicts in the legislative process.” “[T]he last protective membrane of our polity will have been torn to shreds. I urge the conservatives supporting the Federal Marriage Amendment to think again. . . to seek other, readily available means to realize their agendas.”
Here’s what’s wrong, in my view, with Horowitz’s argument:
1) The idea that rewriting the Constitution through the amendment process is an “alternative” to winning American hearts and minds is not just “radical”; it’s idiotic. Nobody believes it. Every proponent of the FMA to whom I have spoken believes that they will have to persuade Americans that the amendment is a good idea if it is going to succeed. In this respect, FMA is not Roe in reverse. If it succeeds, half the country will not be opposed to it. If half the country or even a third of the country is unalterably opposed to it, it won’t pass.
2) What are the “readily available” alternatives to the FMA? The reason some conservatives have gotten behind it, with full awareness of the difficulty of formally amending the Constitution, is that they have reached the conclusion that there are no such alternatives. Proponents of the FMA believe that the federal and state judiciaries are bent on rewriting the marriage laws. You can argue that they’re wrong, but if they’re right–which would seem to be implied by Horowitz’s advocacy of “alternative means”–it’s hard to see how they can move the issue into the “legislative process.” If Horowitz is aware of some means of doing this, he should spell it out.
3) At a few points, Horowitz seems to be suggesting that this attempt to amend the Constitution will spawn many other attempts to amend it. I’ve never found this generic objection to amendments persuasive. There are always many people who would like to amend the Constitution in various ways, and the procedural obstacles to doing so are high enough to block almost all of them. An extra-constitutional inhibition against amendments in the political culture is superfluous.
It seems to me that the strongest objection to the FMA is not procedural but substantive. That is, the argument against FMA has to stand or fall on the idea that gay marriage is either a good idea or a possibly good idea. I’d be very interested in what Horowitz had to say about that underlying issue.