The National Review tells us that Orrin Hatch will be offering his own gay marriage amendment designed to leave the issue to the states and save us from activist judges. This was the gist of what I inaptly named the "Ponnuru Amendment", and would seem to have the support of Andrew Sullivan, Eugene Volokh, James Taranto of the WSJ, and Ramesh Ponnuru of the NRO [let's add Pejman]. Here is the proposed Hatch text, for which the only source at the moment seems to be the NR:
"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."
Now, let's not get carried away; Sen. Hatch still supports the Musgrave Amendment, as does the National Review (we infer); the Hatch Alternative is their notion of a tolerable compromise, rather than a great idea on its own merits.
Whatever. Die-hard opponents of gay marriage will worry that the Hatch Alternative does not go far enough in protecting us from gay marriage and civil unions, but if it can get out of Congress, it will go a lot further than the seemingly-DOA Musgrave Amendment. Personally, we will enjoy watching newly-converted states-rights advocates like John Kerry explaining their objection to Sen. Hatch's proposal.
Of course, there might be some coherent objections - PolySigh makes an interesting point about Loving v. Virgina, the Supreme Court decision striking down state bans on inter-racial marriage:
Am I wrong in thinking that such an amendment would overrule Loving v. Virginia, the 1967 Supreme Court case that overturned state bans on interracial marriage? The second sentence ("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.") is clearly intended to prevent courts from using the equal protection clause of the 14th Amendment to strike down gay marriage bans. But the first sentence ("Civil marriage shall be defined in each state by the legislature or the citizens thereof.") is much broader. Say, for example that the state legislature in Alabama decides to reimpose its ban on interracial marriage. Under this amendment, courts would have not constitutional basis for striking down such a ban since state legislatures are given unlimited power in this area.
Hmm. I would recommend following the link for the rest of the analysis, but who can trust Blogger?
In any case, this offers an objection to Hatch that will make states-rights advocates like John Kerry squirm - the federal courts have often led in advancing civil rights, and it is wrong to deny the federal courts the ability to correct injustice found at the state level. As Al Sharpton said emphatically, "I am unilaterally opposed to any civil right being left up to state's rights".
Yeah, tell your presumptive nominee. The Hatch Alternative might just have legs.
UPDATE: R. Ponnuru updates us on the Hatch Amendment; E. Volokh caveats his support.
We excerpt the rest of PolySigh right here:
I can think of two objections to this reasoning. Some would say that the second sentence, in addition to the first, shows that the authors of the amendment intended only to allow legislatures to bar gay marriage. But that seems a thin reed since, as conservatives have long pointed out, courts have a habit of reading things in or out of the Constitution.
Other would say that in this day and age, it's impossible that a state legislature or the people of a state would ban interracial marriage. Perhaps, but in 2000, Alabama held a statewide referendum to remove the ban on interracial marriage in their state constitution. This ban was, of course, null and void because of Loving but the referendum carried only by a margin of 60%-40% and 50% of white Alabamans still voted against the repeal (the data for this conclusion are forthcoming in a paper I'm writing). Given these figures, I'm not so sanguine about the impossibility of a state banning interracial marriage.
Given these figures, I'm not so sanguine about the impossibility of a state banning interracial marriage.
What do you care whether they do? If you're so eager to sacrifice gay and lesbian people's equality, why not overrule Loving, too?
Posted by: Mithras | March 08, 2004 at 03:24 AM
it will be interesting to see whether that sort of "reasoning by hysteria" is effective. And is the question of overturning Loving v. Virginia also being addressed to John Kerry, who claims to support a states right approach, to oppose gay marriage, and to support a Massachusetts state constitutional amendment banning gay marriage?
I ponder Loving v. Virginia, and the importance of process.
Posted by: TM | March 08, 2004 at 06:39 AM
in 2000, Alabama held a statewide referendum to remove the ban on interracial marriage in their state constitution. This ban was, of course, null and void because of Loving but the referendum carried only by a margin of 60%-40% and 50% of white Alabamans still voted against the repeal (the data for this conclusion are forthcoming in a paper I'm writing). Given these figures, I'm not so sanguine about the impossibility of a state banning interracial marriage.
What a beautiful melange of "federalists" today's Republican party is. Party of Lincoln indeed. Ofcourse this is about "process"; and gays are "different"; and this isn't about equality etc. etc.
First they came for the gays...
Posted by: Pastor Martin Niemöller | March 08, 2004 at 08:26 AM
First they came for the gays...
My impression is that gay rights have been advancing quite dramatically in this country. Is your view different, or is this just an extension of the earlier argument to suggest that anyone opposed to gay marriage now, by judicial fiat if necessary, not only favors a ban on inter-racial marriage but would like to gas some Jews?
Pretty compelling.
Posted by: TM | March 08, 2004 at 09:03 AM
Check the timestamps - there is always the possibility that I have mischaracterized the position of John "Fluid" Kerry. Let's go the to WaPo:
I finally lost my grip, though, when I opened my newspaper a few days ago to read of Kerry's latest lunge in the direction of some politically feasible position on gay marriage. In general, Kerry, like most Democrats, has taken shelter in the mantra that (a) it's a matter that should be decided in the states, and (b) civil unions are the acceptable way to go about conferring equal rights on gays; marriage itself is off the table. "I believe marriage is between a man and a woman," Democrats say, as if that took care of the matter. Outside of a religious context, of course, that statement is a prejudice rather than a policy -- a prejudice that, in many cases, the speaker does not actually hold.
But Kerry was managing this footwork just fine until Feb. 4, when the Supreme Court of Massachusetts interpreted the state's constitution to require the option of gay marriage. Kerry responded by endorsing an amendment to the state's constitution that would forbid gay marriage but allow civil union. He was the only member of his congressional delegation to take this stance, for good reason: Endorsing a constitutional amendment at the state level seriously undermines the arguments for fighting an amendment at the federal level. One of the best arguments against forbidding gay marriage in the Constitution is that the spirit of the document is to confer rights, not confiscate them.
This more-than-theoretical move against gay marriage was at odds with Kerry's brave 1996 vote against the reprehensible Defense of Marriage Act, which is easily one of the most principled votes he ever cast. He was one of only 14 senators to oppose it, while Bill Clinton, ever triangulating, cynically signed it into law.
But never mind. On Feb. 27, Kerry quietly told a group of unhappy gay donors that he would work to confer full federal benefits, including Social Security survivor benefits, the right to file taxes jointly, and more than a thousand others, on gay couples joined by any state-sanctioned union -- which would of course include marriage. So while wishing to forbid gay marriage in his own state, he is promising to reward it in others.
To watch Kerry floundering in the impossible contradictions of this issue is to see starkly how little he is guided by core principle -- or even by a consistently wise sense of where his political interests lie. To respond to every unpleasant political stimulus that presents itself is to throw away the chance to make even an expedient long-term commitment to something.
Posted by: TM | March 08, 2004 at 09:59 AM
My impression is that gay rights have been advancing quite dramatically in this country.
In spite of the vehement opposition of a significant chunk of the Republican party base led by Rick "gays should be outlawed" Santorum.
or is this just an extension of the earlier argument to suggest that anyone opposed to gay marriage now, by judicial fiat if necessary, not only favors a ban on inter-racial marriage but would like to gas some Jews?
The moral you attempt to draw from Niemöller's quote is too narrow. The real lesson to be learned is to always be wary of those who claim to only want to deny rights to a certain "few". That "few" may someday include you. As evidence for this, I point to the results of the anti-miscegination referendum in Alabama.
Finally, the "Judicial Fiat" argument is tiresome. The president is not advocating an anti gay marriage amendment because he believes in federalism. He is advocating it because his base wishes to outlaw gay marriage everywhere in America.
P.S.
Brown v. Board of education was "judicial fiat".
No doubt, you would have argued for a more "incremental" approach at the time.
Posted by: Pastor Martin Niemöller | March 08, 2004 at 01:33 PM
The real lesson to be learned is to always be wary of those who claim to only want to deny rights to a certain "few".
I see a big difference between "coming for the Jews", who were taken to their death, and holding the line on a definition of marriage that has been with us for centuries. And as to rights, the hard-line civil union advocates insist that civil unions will have every right of marriage except the use of one word.
Finally, the "Judicial Fiat" argument is tiresome.
Sorry. I, on the other hand, am enraptured by imaginative Holocaust analogies.
The president is not advocating an anti gay marriage amendment because he believes in federalism. He is advocating it because his base wishes to outlaw gay marriage everywhere in America.
Well, some of his base wants to, and some doesn't. The unity on the conservative side does seem to be in opposition to those tedious activist judges.
Posted by: TM | March 08, 2004 at 02:11 PM
I see a big difference between "coming for the Jews", who were taken to their death, and holding the line on a definition of marriage that has been with us for centuries.
A lot of things have "been with us for centuries" including anti-semetism. The holocaust didn't begin with "extermination" and even if it had never gotten that far, it would still have been ghastly. I for one would rather not flirt with the line between "evil" discrimination and "not-so-evil" discrimination. Ask yourself this, how far would we have to go to satisfy the 50% of white Alabamans who voted for the referendum? And how much common ground is there between those Alabamans and the champions of the FMA? Do you really want to find out the answer to either question?
I, on the other hand, am enraptured by imaginative Holocaust analogies.
Well, I try.
And as to rights, the hard-line civil union advocates insist that civil unions will have every right of marriage except the use of one word.
Sadly, you spend your time ridiculing the hard-line civil union advocating Kerry while giving the FMA touting Bush a free ride. A judgemental person would question your integrity at this point, but I'm not one for throwing stones.
Posted by: Pastor Martin Niemöller at | March 08, 2004 at 03:54 PM
I wouldn't care to flirt with the line between "evil" discrimination and "not-so-evil" discrimination either. Once we've established gay marriage (through the democratic process, not the courts) let's take on racial preferences.
Posted by: Paul Zrimsek | March 08, 2004 at 04:08 PM
Sadly, you spend your time ridiculing the hard-line civil union advocating Kerry while giving the FMA touting Bush a free ride.
This election campaign presents a grim symmetry - the Bush side seems to dislike Kerry more than they like Bush (OK, I'm speaking for myself, there), and vice versa for the Kerry camp. Nastiness reigns!
And my rationale is that this issue is a useful window into a candidate's character, and decision making process. Or, that I just can't stand Kerry.
Anyway, I did wack Bush on this issue, way back when, although I have to admit that the emphasis has been on Kerry. A rose in every bed of thorns.
Posted by: TM | March 08, 2004 at 04:54 PM
Back to:
"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."
Regarding the Loving problem, the first sentence of this draft does not include the "Nothing in this Constitution" language, so it doesn't purport to override anything in the existing Constitution (except to the extent that the present Constitution leaves open the possibility that the federal government or the state judiciary or the state executive may define marriage). I believe that any state legislation or initiative defining marriage would have to satisfy the equal protection clause as defined by the federal courts, subject to the limitation set forth in the second sentence.
With respect to that second sentence, it does certainly operate to limit the equal protection clause as well as every other part of the Constitution. But I don't understand why it's necessary to express a discrimination based on whether the marriage is a monogamous heterosexual one. Why not just say (in effect, if not in these words) that nothing in the Constitution shall be construed to require that marriage or its benefits be extended to any union other than one defined as a marriage under the law of the relevant state? It seems to me that anyone who insists on the "a man and a woman" language is fairly open to the charge that all the noise about states' rights and the democratic process is just high-sounding cover for a specifically anti-gay animus.
Posted by: P.H. | March 08, 2004 at 08:43 PM
The Ponnuru amendment? It might have possibilities. Regarding the Loving case--one of the best-named Supreme Court cases ever: I would read the first sentence of the amendment as constraining state courts, and the second sentence as constraining federal courts in one respect. That the first sentence imposes no great constraint on federal courts is clear from Bush v. Palm Beach County and Bush v. Gore: the Constitution's vesting of a power with a state legislature does not insulate it from federal judicial review and the requirement of conformity with the rest of the Constitution, but it does mean that state courts can't substitute their judgment for that of the state legislatures. Also, the existence of the second sentence implies that the first does not, by itself, block federal judicial action. So Loving v. Virginia remains good law.
Posted by: Ramesh Ponnuru | March 09, 2004 at 03:44 PM
Based on his subsequent article and the previous comment, I can say that giants walk among us.
http://www.nationalreview.com/ponnuru/ponnuru200403110847.asp
Waiting for Hatch
Senator Orrin Hatch, the Utah Republican, has been toying with the idea of introducing an alternative to the Federal Marriage Amendment. Instead of banning same-sex marriage altogether, his amendment would leave that question, and questions about quasi-marital benefits for same-sex couples, to state legislatures. Until this point, the Hatch amendment has read, "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." If Hatch moves ahead with it, the words "and its benefits" will probably be added after "civil marriage" in the first sentence, to ensure that civil unions as well as same-sex marriage is a matter left to the state legislatures.
...So far, opponents have made four arguments against Hatch's amendment. (Not all of the below arguments, I should note, are made by Senator Santorum himself. Some of them come from Senate Republican staffers, including some who work for other senators.)
...2) It would allow state legislatures to prohibit interracial marriage. This argument has popped up here and there in blogdom; if the Hatch amendment became a live proposition, it would no doubt feature heavily in the arguments of the liberal opposition. A response to it requires a quick trip into the weeds. The Supreme Court, more than 30 years ago, found in Loving v. Virginia that state prohibitions on interracial marriage violated the Fourteenth Amendment. The Hatch proposal would not overturn that decision.
The first sentence limits the ability of state courts to rewrite marriage laws: Anything they do can be put before the federal courts because it will implicate a power that the federal Constitution (as amended) will vest in the state legislatures. The second sentence limits the federal courts' ability to do one particular thing with marriage laws: namely, to rewrite them so that same-sex couples can apply.
So the question would be: Does the vesting of the power to define marriage with state legislatures in the first sentence bar the federal courts from reviewing the marriage laws for racial discrimination? There are two reasons for thinking that it does not. First, the existence of the second sentence suggests that the first sentence does not limit the federal courts at all. Second, Supreme Court precedent in other cases where the Constitution vests a power with state legislatures does not suggest that those legislatures are free to ignore other parts of the Constitution.
OK, the Ponnuru Amendment it is.
Posted by: TM | March 11, 2004 at 06:06 PM
I have read this article very attentievly, but I have no my own idea about it
Posted by: Rick | May 19, 2004 at 01:58 PM