A Marriage Amendment I'd Support

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I've been thinking about the various proposals for an FMA, and I've hit on one I'd support, one not proposed by anyone so far. If they were to amend the Constitution to prevent state judges and justices from requiring gay marriage simply because of language in a state constitution that wasn't intended to allow gay marriage but can be re-read in some postmodernist reader response theory as meaning that. I'm not sure how such an amendment would read, but it would have to require legislation to allow gay marriage. As I've opposed the FMA, people's responsed have indicated that somehow they haven't gotten clear that I disagree with what Massachussetts has done. Unelected leaders have sidestepped the legislative process, just as the Supreme Court did with the Texas sodomy law last summer.

There may be some state constitutions that require gay marriage, and California is one that people have argued does, simply because it's discrimination against men to deny them a right that we give women (to marry men) and vice versa. So this wouldn't be some ad hoc amendment designed to forbid whatever state constitutions say as irrelevant, no matter what it is. It should be the kind to prevent what MA has done, since there's no statement there, to my knowledge, that really bears on the issue. None of the arguments I've seen can justify what the state's highest court has done. That's the sort of thing the federal government can and should take a stand against. I'm not sure an amendment would be the best way to accomplish this, but I can't think of a better way. The FMA as proposed is not going to succeed. We already know how the votes are going to go. It's against the states rights that most of the people supporting it insist on in other areas, thus showing an element of hypocrisy unless they can give an argument why it's different in this case. Even those who insist on resisting gay marriage as much as possible will face these two objections, and the kind of amendment I'm suggesting will get around that. Someone who thinks the FMA as stated is wrong to begin with, as I'm at least inclined to think, should be even more excited to place the focus on where it really should be.

6 Comments

At the heart of the issue, IMO, is judicial overreach and the use of the bench to promote moral relativism. We need to let democracy work as originally designed.

The states rights argument works well if everyone agrees to follow civil law and not side step the legislative process. What I have witnessed in Massachusetts and San Francisco is a combination of judicial overreach and outright anarchy. The pattern is clear. Use the courts to get what you want. If the courts don�t work, just ignore the law. Are states rights really defensible in such a climate?

Desperate times call for desperate measures. If your new and improved amendment shores up the damage to our democracy, then I am all for it. Keep brain storming.

The Massachussetts case is judicial overreach. The San Francisco case is abuse of a different kind of power -- executive power. The first case involves appointed officials stepping beyond their authority. The second case involves an elected official stepping beyond his authority but additionally breaking the law. I don't see the anarchy thing in either case. Anarchy is when there's no rule of law. This is crime (the SF case, anyway), the breaking of a law, not the absence of law.

I don't think my amendment would get enough support, so I'm not exactly serious about it. Too many people think of the Constitution as a living document that can be read in a postmodernist, reader-response way without regard to original intent. Some of the members of the Supreme Court even think this.

There's also a weird circularity problem that it would need to overcome. If an amendment to the Constitution is telling people how they have to read the Constitution, then a prior commitment to how they read the Constitution might lead them to read the amendment in such a way that it doesn't mean what it's intended to mean, and then it's pointless anyway.

The tack I was taking with the "anarchy" comment was that officials were doing what was right in their own eyes. The old book of Judges scenario. If we all did that, law or no law, anarchy would result. Your point about abuse of power stands, however. It definitely was that.

Your "begging the question" comment is quite funny when you think about it. It is kind of like passing a new law to make it mandatory to follow the old laws or else. A moral viewpoint requires grounding or we get nowhere. The reader response approach to constitutional interpretation has no grounding, which is the crux of the issue.

The core issues, in my view, are moral relativism and abuse of power (judicial or executive). That, along with the importance I believe God places on the institution of the family, is why I support the FMA. I don't see other serious alternatives that treat seriously the threat of moral relativism and take into account the glaring weakness of our democracy; namely, the judiciary. I thought your post was a serious attempt at an alternative so I came over to check it out.

While we are talking about faith-culture issues, David at JB is posting some helpful ideas on jettisoning the war talk and using new rules of engagment. Very edifying.

Take Care!

This is a mere band-aid, though, if the real goal is to stop judicial activism. It doesn't go far enough to stop that goal, and in fact it goes too far, forbidding something that, as far as the judicial activism point is concerned, would be fine as long as a legislature allowed it.

I'm curious, Jeremy: what do you think of the amendment Orrin Hatch proposed? It seems to me to be awfully close to what you're thinking. It reads:

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.

I blogged on it here.

This is about the U.S. Constitution. I wanted something preventing what MA did, which involved their own state consitution, and the claim of the state supreme court was that the legislature had already implicitly given gay couples the right to marry in that document. Hatch's amendment doesn't stop that. I can't imagine how an amendment that would stop it could be worded, but this one doesn't do it.

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