Is that gun loaded?

The past month has seen reams of discussion concerning the proposed Federal Marriage Amendment (FMA), defeated in the US Senate on Wednesday, a Constitutional change that would have banned state recognition of same-sex marriage. One of the more interesting venues for discussion was hosted by the Cato Institute in Washington, in conjunction with the Center for American Progress (CAP), where convened a panel of legal scholars and commentators, each of whom disapproved of the amendment for various reasons. The panel consisted of Mark Agrast, Senior Fellow at CAP and former legislative director for Congressman William Delahunt (D-MA); Dale Carpenter, a Constitutional law professor at the University of Minnesota; Bruce Fein, former deputy attorney general during the Reagan administration; Louis Seidman, a Constitutional law professor at Georgetown University; and moderator Neera Tanden, former legislative director of Senator Hillary Clinton (D-NY).

The participants in the forum each made forceful and convincing arguments against the amendment as proposed. Dr. Carpenter’s main argument destroys the idea that judicial activism has succeeded in thwarting the people’s will on this issue, thus making a federal amendment unnecessary (to read his policy analysis, click here); Dr. Seidman, through a rigorous textual analysis, explains why the language of the amendment is about as bad as one could get, introducing two new legal obscurities into Constitutional law that would surely have severe consequences, unforeseen and unintended by the framers of the law. The most interesting panelist was Mr. Fein, who proposed his own version of an amendment, one that would simply take the issue of same-sex marriage out of the hands of the judicial system and place it exclusively in the legislatures, thereby once and forever removing judicial activism as a threat to the popular will (notably, the Fein amendment would also nullify state constitution amendments already approved that ban same-sex marriage). Fein’s solution is to force the most ‘democratic’ body of any government, the legislature, to grapple with the issue each session without preemption by judges legislating from the bench. In most cases, the panel seemed to agree (at least, for now) that federalism is the best solution, according to each individual state the right and prerogative to make law on this matter, and indeed, family law has always been reserved by the states.

I should say here that I agree, in sum, with the positions of the panel. The amendment is an exceedingly poor one. The language of the amendment is far too broad and vague and will create as many problems as it solves. And in a fit of cynicism, one could say—as several of the panelists did—that the shoddy legal language of the amendment was drafted precisely in order to fail. Why would anybody write and propose an amendment intending for it to fail? With mid-term elections but five months off, a faux amendment debate is one way to rally a flagging political base, and surely there have been politicians who have used the FMA in this cynical way, but there are other interpretations for why conservatives would put forward such a lousy amendment at this time.

One could interpret the FMA as political conservatives brandishing a weapon that they are loth to use, but will do so if the gay lobby doesn’t stand down. One could just as well say that, for the gay lobby, this is a struggle for perceived basic rights accorded to them under the Constitution; there will be no let-up in its pursuit of said rights, and threats—such as the FMA—will do no good in deterring them.

One could also interpret the FMA as a weapon brandished not only at the gay lobby, but centrists who would aid and abet it, and here the notion begins to gain traction. Of the four panelists, there was an obvious split in opinion concerning the perceived urgency of the issue. Two of the panelists seemed to condone a more aggressive approach to securing gay rights; the other two, while sympathetic to gays, seemed to shy away from a strategy of direct confrontation with political conservatives. This is precisely the attitude conservatives hoped to foster in threatening an amendment in the first place.

Some threats are idle; others are not, and conservatives wanted to make plain to the gay lobby and others that the threat of an amendment is one that they can make good on. The subtlety of such an approach was not lost on Dr. Carpenter, who pointed out that, should there be egregious examples of judicial activism on this issue in the near future, then you will likely see conservatives put forward the “real” Federal Marriage Amendment, and its passage into law would not be undone for quite a long time, because as he reasons, there will always be 12 states refusing to repeal such an amendment. In other words, by pushing too hard, too fast, the gay lobby will actually do greater harm to itself.

In any event, Mr. Fein’s proposed solution—stripping state and federal courts of the power to decide the issue—is probably the least unfair of all possible outcomes. First, it would allow each state the ability to decide for itself. Second, it would ensure that the decision reached would be the result of greater democracy rather than less. Even then, there would still be important future issues to discuss at the federal level, so it wouldn’t put same-sex marriage to bed forever. For instance, it is not difficult to imagine in the future, under such a federalist system, that the gay lobby would use the portability of same-sex marriage (e.g., what if a gay couple wed in Massachusetts and moved to Alabama?) as a lever with which to pry open the marriage issue on a federal level, but these considerations are too speculative at this point for conservatives to worry about. The federalist structure should be given the opportunity to work before resorting to other means.

The long-term problem to such an approach would be this issue’s ability to accentuate the cultural differences between states; red states would become redder, blue states bluer. And as for “purple” states, this lone issue would hijack the legislative agenda, creating a warped body politic every bit as much as the abortion debate has done on a national level, so there are also some compelling reasons to address this issue nationally. But again, these concerns are too speculative to be actionable, and the fairest solution at this moment in time is to let each state decide for itself through its own legislature, and I would not be averse to enshrining that principle in the form of an amendment, assuming that the language of said amendment be of a quality and concision worthy of the U.S. Constitution.

Note: You must have RealPlayer 10 to view the panel discussion link above. If you still experience problems, try modifying your media type preferences by selecting Real-Time Streaming Protocol (RTSP) in RealPlayer.