Alleged problem two: “On its face, the Hatch language appears to overturn the federal Defense of Marriage Act, which defines marriage as the union of a man and a woman for the purposes of federal law.” Here Gallagher has found a possible ambiguity in Hatch’s wording, one that could perhaps be fixed by changing “in each state” to “for each state” in the first sentence. But this is a fairly niggling criticism, considering that the text of her own preferred amendment just changed in the Senate yesterday. It’s not a criticism that gets to the heart of the question.
Alleged problem three: “It won’t protect defense-of-marriage laws from being overturned by a Supreme Court already signaling its interest in affirming same-sex marriage as a civil right.” Since Gallagher does not expand on this point, I’m not sure why we are supposed to believe it. As far as I can tell, she’s wrong. State defense of marriage laws typically have two components: They define marriage as the union of a man and a woman, and they deny recognition to same-sex marriages contracted elsewhere. Under the Hatch language, the Supreme Court has to defer to the state legislatures on the definition of marriage (sentence one) and cannot use any provision of the Constitution to compel a change in that definition (sentence two). Nor can the Supreme Court use the Constitution to compel recognition of out-of-state same-sex marriages, since that would require that benefits be granted in violation of sentence two.
Alleged problem four: “Leaving the matter to the states amounts to conceding that marriage is not a key social institution.” I don’t see this at all. Gallagher knows perfectly well that the failure to include a definition of marriage in the Constitution up until now was not a matter of Americans’ not understanding that marriage is a key social institution. It is necessary to include it now, on her account, because the institution faces a particular threat. But what is the nature of that threat? The reason advocates of an FMA have always given for why a constitutional amendment is necessary is that it is the only way to stop state and federal courts from redefining marriage. If an amendment other than the FMA can accomplish that goal, and indeed accomplish it better because it can actually be enacted, what’s the argument for asking an amendment to do more? The Hatch language does not concede that marriage is not important; it recognizes that the action to be concerned about blocking is the judicial imposition of same-sex marriage (or civil unions).