March 29, 2004,
For three years the Alliance for Marriage has been working to create a consensus around the need for a federal marriage amendment. When President Bush announced his support for a constitutional amendment on marriage, the "Musgrave/Allard" language crafted by the Alliance for Marriage was the only language on the table.
The main thrust of this Federal Marriage Amendment is to create a common national definition of marriage, and to leave the question of civil unions or other partnership benefits to state legislatures:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.
Now, as social conservatives have gone through a painful process of creating consensus around this FMA, a new language and a new idea (attributed to Senator Hatch) has been thrust into the political mix:
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.
National Review endorsed the Hatch language as an acceptable alternative, and Ramesh Ponnuru vigorously defends it from my critique in the last week's Weekly Standard, on the grounds it "recognizes that the action to be concerned about blocking is the judicial imposition of same-sex marriage (or civil unions)."
Is he right? Does the Hatch amendment solve the problem?
That depends in part on what the problem is. In my view, the ongoing damage that is being done to marriage cannot be captured solely by the idea of "judicial activism." An ongoing, very public effort to deconstruct and privatize the meaning of marriage is being pursued not only by courts but by other legal elites (including attorneys general such as New York's Eliot Spitzer, who advised state officials that same-sex marriages performed in other jurisdictions are legal marriages in New York) and political officials (such as the mayors of San Francisco; Seattle; Portland, Oregon; New Paltz, NY; Nyack, N.Y.; and Asbury Park, N.J.). Individual ministers as well as courts are now asserting their private right to define marriage as they choose.
In the middle of a broad cultural attack on the very idea of marriage as a key social institution, reducing our rallying cry from "save marriage" to "leave it to the states" suggests that in a profound way we agree with these critics: Marriage is not a key social institution, it is one of many "social policies" best left to individuals or to the states to work out.
The problem, both legally and politically, with the Hatch language is that is changes the topic from marriage to federalism.
Conservative elites and GOP senators gravitate towards this language in many cases because they have a well-developed language to talk about "judicial activism." This language pretty much never goes anywhere, because Americans never show much evidence of being deeply roused by procedural issues.
Marriage, on the other hand, is proving to evoke a powerful response from the American people. Since December, support for a federal marriage amendment that allows only a man and a woman to legally marry has risen from 55 percent to 59 percent, while opposition has dropped from 40 percent to 35 percent over that period, according to a CBS News poll. In liberal, Democratic, pro-choice, Massachusetts, in the very first electoral test of gay marriage as an issue to move voters, voters just elected an anti-gay- marriage Republican over a pro-gay-marriage Democrat. Crossing party lines to unseat Democrats is pretty much unheard-of political behavior for Massachusetts voters. Will the public response be a sustained and organized enough effort to push an FMA through a lukewarm Senate? We don't know yet. But now, at the very beginning of the process of organizing around this issue, of mobilizing the American people around the great and important question of whether a common marriage culture is important enough to defend, some political elites want to change the subject. It's a terrible mistake.
There are many other problems with the Hatch language.
If "civil marriage" is defined by the state legislatures alone, the Hatch language asserts rather forcefully that marriage is a creature of government. If it's okay to give the citizens, along with state legislatures, the right to create marriage, why shouldn't a creative court rule that the people can create same-sex marriage, too?
There is an even simpler problem: The Hatch language won't stop state courts from recognizing gay marriages performed in Canada, or Europe, instantly changing our common legal definition of marriage. We could fight for an FMA and easily get this result: A quick flight to Toronto could produce a valid gay marriage in many states.
Ramesh Ponnuru argues that the Hatch language is more politically possible. I doubt it will turn out that way.
The hastily crafted Hatch language will turn out to be a major political liability. Because marriage, unlike abortion, is not a simple discrete act but a complex idea interwoven into law in many areas, the implications of the Hatch language are convoluted and open to multiple interpretations.
What will advocates of the Hatch language say when, for instance, the NAACP points out that the Hatch language appears to overturn Loving v. Virginia, thus authorizing states to ban interracial marriage?
Mind you, I don't know that the current Supreme Court is likely to use the Hatch language to overturn Loving v. Virginia. But when opponents of an FMA say they are against it because it might do so, they have a point. Who knows?
Who knows whether or how the Supreme Court will use this language to wade into various legal and public-policy debates around marriage? It is not the intent of the drafters, but if we had courts bound by the intent of the framers we wouldn't be facing this problem, would we?
Who knows what the effect of the Hatch language will be in the hands of courts hostile to the very idea of a common marriage culture? Let's not forget: We face this problem because the Supreme Court (and now state courts) began treating marriage as one of many sexual lifestyles, rather than a core social institution.
By creating a complicated debate over federalism, rather than a simple and clear debate over the meaning of marriage, the Hatch language will provide multiple "hatches" for political officials who either secretly support or don't care about gay marriage to escape the political consequences of their views.
Legally, the Hatch amendment's effects are complex and unclear. Politically, its effect is all too clear: By splitting the opposition to same-sex marriage into camps, the Hatch proposal is the opposite of mature leadership. It is a monkey wrench thrown into a serious, difficult, but absolutely critical effort to restore not only the proper balance of the courts, but a common, shared understanding of what marriage is, and how much it matters to this generation and to generations to come.
Which may be why Sen. Hatch made it clear last week that he endorses the original FMA.
Maggie Gallagher is president of the Institute for Marriage and Public Policy, which sponsors www.marriagedebate.com.