Friday, June 02, 2006

(more on) federal marriage amendment

You've already got the publicly stated opposition of prominent conservatives like Bob Barr, Dick Cheney, Chris Cox, Bruce Fein, John McCain, Ramesh Ponnuru, George Will, and others (not to mention several VC bloggers). Now you can add to the list James Q. Wilson, a respected voice in conservative intellectual and policy circles. Last March 18, in the Wall Street Journal, Wilson criticized the one-size-fits-all abortion policy represented by Roe v. Wade. Then he wrote this:

The states should also decide about gay marriage. Some conservatives are urging Congress to propose a constitutional amendment banning this, but this would be a mistake. People should vote on this matter and about the conditions of life they wish to experience where they live. Though I oppose gay marriage, voters in some states may approve it. If they do, we will have a chance to learn what it means in practice, with the costs and benefits falling on people who have accepted it.

Moreover, a state-by-state vote on the matter provides an opportunity for gay advocates of this policy to make their case. A constitutional amendment would deny them that opportunity, leaving them perpetually angry. Since feelings run high on this matter, it would be a mistake to let it be decided as the right to abortion was decided. If there were the gay marriage equivalent of Roe v. Wade or a constitutional ban on it, we would infect the nation with the divisive anger that followed Roe and our earlier attempt at alcohol prohibition.

I love the link here between Roe and the federal marriage amendment. Both spring from the absolute conviction that you have laid your hands on the final truth of the matter, that no amount of evidence the other way could ever convince you that you are wrong, that your conviction must be imposed immediately and forevermore on the entire nation lest some fools living in dissident states think and act otherwise, and that the Constitution itself must be made to conform to your current policy preference.

Wilson continues:

If there is to be a constitutional amendment, it would be better if it said this: “Nothing in this Constitution shall authorize a federal judge to decide that a marriage can be other than between one man and one woman.” If I could think of language to bar judges from making other social policy decisions, I would add it, but the words fail me.

This jurisdiction-stripping amendment would allow the states and the people to experiment with gay marriage, something George Will has said is worthwhile. I don't think even this narrower amendment is necessary, since I think the likelihood of federal judicial imposition of nationwide gay marriage in the near- to medium-term is very low. But at least a jurisdiction-stripping amendment would actually address the stated, populist concerns about judicial activism. The amendment the Senate will vote on next week would do much more than that. It's overreach and overkill.


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