The Hatch Amendment On Gay Marriage Makes The Times

Tom Campbell was a Republican congressman from California from 1989 to 1993 and 1995 to 2001, the NY Times tell us, which may explain why I have never heard of him. But here he is on the op-ed page of the Sunday Times, urging Bush to back the as-yet-unoffered Hatch Amendment on gay marriage:

With two simple acts, President Bush can inoculate himself against one of the most powerful attacks likely to be made against him in the coming campaign: that he does not support Americans' right to privacy.

One act would be to make the following declaration regarding judges: "I will not appoint any person to the Supreme Court or other federal courts who intends to restrict an individual's right to privacy; and I will not demand of any nominee in advance a promise to rule in any specific way on any specific case."

The other would be to endorse the following amendment regarding gay marriage: "Nothing in this Constitution shall compel the federal government or any state to accord the status of marriage, or its benefits or obligations, to any parties other than one man and one woman."

Forward progress!

MORE: Our last look at this had some useful links.

Comments

[Mithras]

"Nothing in this Constitution shall compel the federal government or any state to accord the status of marriage, or its benefits or obligations, to any parties other than one man and one woman."

What's the point of this? The Massachusetts, Vermont or Hawaii decisons weren't based on the federal constitution. It constitutionalizes DOMA, but that's important only insofar as a court down the line might declare DOMA unconsitutional. But if we get to that point, it probably would mean that a significant number of states had already legalized SSM, so the fight would be over anyway. I suppose there could be a conservative fear that a future Supreme Court could render a LGBT Loving v. Virginia, but again, given the current trend that hardly seems necessary.

Anyway, I love that this discussion keeps going. Your side argues for "separate but equal" and second-class status for millions of Americans, and my side gets to argue for freedom. Bring it on!

[TM]

Mithras, you've beenaway too long - it was getting to where I could sit comfortably.

Anyway, the point of the Hatch Amendment is that neither a state nor Federal judge can invoke the Equal Protection clause of the Fourteenth Amendment (or any other darn clause) to decide that the US Constitution creates a right to gay marriage.

In Massachusetts, the state Supreme Court used an equal protection argument.

Anyway, my side (hmm, my middle side, which does not define gay marriage, allows civil unions, fails to satisfy the right, and so far has only intrigued the intellectually but not passionately involved) argues for an orderly legislative process; your side supports a divisive, "Roe v. Wade" judicial cram-down. We're bringing it!

[Paul Zrimsek]

And MY side-- which not only favors gay marriage but favors calling it just that, but which, if forced to choose between gay marriage and democracy will pick democracy-- agrees.

[Mithras]

There is a reason why the constitution occasionally trumps democratic majorities. The only reason people can crow about the majority ruling otherwise is that they're not in the minority being denied their rights.

So, MacGuire, why is the equal protection argument not a good reason to lift the ban on gay marriage?

[TM]

The Court was very cautious in applying that seemingly inescapable logic in the case of the state bans on inter-racial marriage.

Apprently, at one time over half the states had such bans; California was the first to repeal in 1949. The Supreme Court studied the issue in the 50's, but waited until the Civil Rights Act and Voting Rights Act of the early 60's had passed before getting involved in 1967 (Loving v. Virgina).

Their ruling, which duly noted that Equal Protection has special apllicapability in racial relations, struck down in bans in the 13 states that had not yet acted on their own initiative.

So, the Court *followed* state and Congressional action, rather than attempting to lead it. This (we presume) led to greater acceptance of the ruling, allowed public debate, allowed public opinion to evolve, preferred the legitimacy of the court, and avoided a sense of judicial cram-down.

However, I suspect they could have made the same intellectual arguments in 1955 that they made in 1967.

And an obvious anti-example would be Roe v. Wade, where the "choice" side has probably won the main debate, but the issue festers because "we the people" have been denied a chance to discuss it.

Anyway, I think the Gay marriage side is destined to win this one, eventually. The public debate, as in Massachusetts, has forced both sides to present their views, and let the rest of us reflect; frankly, beyond a gut reaction of "WTF", the anti-gay marriage crowd does not seem to have much to say (IMHO).

My suspicion is that there is a legal argument against the Equal Protection clause as well - apparently, when roaming beyond racial issues, the SC is meant to give deference to the view of individual states who may have found a rational basis for unequal treatment.

Obviously gay-rights advocates insist that opposition is simply an irrational prejudice. However, for the SC to (implicitly) decide that the majority (big majority, in some states) of people are irrational may not be something they want to do.

Secondly, there are what strike me as non-daft arguments. Apparently, black ministers think that it is already hard enough to persuade the young hip-hop gangstas in their inner cities (Boston, now) to embrace marriage; making it "a gay thing" would further discourage efforts to promote the benefits of a stable married life.

My desperately earnestliberal friends respond to that tidbit on with "how do they know", which strikes me as odd - how the heck *would* they know, this is not a lab experiment, ti is an (argubly) informed opinion from someone in the inner city trenches.

Or, more often, I hear "so what - if inner city blacks suffer because we have granted new rights to gay yuppies, tough luck". OK, they don't mention yuppies, but that is what I hear, and I am frankly not impressed.

Anyway, that sort of thought process would be the basis for a court concluding that a state might have found valid grounds for banning gay marriage. If enough states enacted gay marriage on their own (rather than via a Federal cram-down) then a time may come when the evidence is in, and it can be argued convincingly that the "good reason" is not good. At that point, an Equal Protection argument might reasonably sweep away the bans in the hold-out states.

But at this point, where no staehas allowed in, and lots of states are working to ban it, a Federal ruling would strike me as a social disaster.

George Bush had a great straddle on abortion when asked about overturning Roe V. Wade - "you have to change people's hearts before you change the law". I think that is good advice to the gay marriage supporters, and applies better than Bill Clinton's very good abortion position - "safe, legal, and rare".