The Corner

Tim Noah

casts Bush’s endorsement of FMA as an implicit admission that the Defense of Marriage Act is unconstitutional. The logic here escapes me. Bush said that the Defense of Marriage Act protected no state against its own courts, so that even if it stood it was incomplete. He also said that while he would defend it, the courts might strike it down. The most obvious way to understand it is that the president believes that the statute is constitutional but that judges might rule the other way, whether because they are sincerely mistaken or lawless. The assumption that they can be mistaken or lawless is the backdrop for the whole proposal, after all. (Noah seems unaware of the strong argument for the bill’s constitutionality, no doubt because he’s never read the complete full faith and credit clause.)

Noah also writes, “The state laws, and the question of whether or not state courts will uphold them, are none of Bush’s business, because he opposes Washington meddling in local affairs.” This idea seems to be coming up a lot: that it is in principle never federal business what state courts do. (More to the point, that the whole people can never use the amendment process to deal with state courts.) Now there must be at least a limiting case here. A state judiciary can’t just be allowed to “interpret” the laws so as to abolish the governor’s office and the legislature and have the chief justice of the state supreme court govern alone as king. Presumably at that point everyone would agree that federal action might be warranted.

The bigger flaw in the piece is that the whole argument for an FMA has been that state governments are not capable of defending the existing marriage laws from a co-ordinated state and federal litigative campaign. You can disagree with that, or argue against it, but you shouldn’t be able to get away with ignoring the whole context of the amendment debate. But I suppose that dealing with actual arguments would interrupt the flow of Noah’s bile.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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