Strengthening Constitutional Self-Government

No Left Turns

Revolution by judicial fiat

Charles Krauthammer on the gay marriage and Constitutional Amendment issue. Very good. A flavor: "But because of the Full Faith and Credit clause of the Constitution (which makes every state accept "the public Acts, Records, and judicial Proceedings of every other State"), gay marriage can be imposed on the entire country by a bare majority of the state supreme court of but one state. This in a country where about 60 percent of the citizenry opposes gay marriage.

President Bush supports a constitutional amendment to define marriage as a union between a man and a woman. I am troubled by any constitutional amendment that is not about democratic governance. But the activists have forced the issue. What is the alternative to nationalized gay marriage imposed by the Supreme Judicial Court of Massachusetts?

The 1996 Defense of Marriage Act? Nonsense. It pretends to allow the states to reject marriage licenses issued in other states. But there is not a chance in hell that the Supreme Court will uphold it."

Discussions - 3 Comments

And how does Mr. Krauthammer know what’s in the Supreme Court’s future? Even experts are pretty bad at predicting case outcomes.

Just wondering.

He doesn’t, and there isn’t all that much room for optimism, in my opinion.

Why? Krauthammer says there’s not a "chance in hell" that it will be upheld. That strikes me as weird, given the fact that striking down DOMA itself would be an innovation in the conflict of laws area.

The paradox of FMA is that as more discussion of same-sex marriage happens, it is likely (in my view) that support for the idea will grow, since those who oppose same-sex marriage (and want to force that preference on everyone through Musgrave’s amendment, for example) to avoid the charge of being exclusionary. Gay families are simply not as strange as they are painted by their critics. So the additional publicity is likely to create more support for same-sex marriage.

If the pro-FMA folks had just waited and not tried to pre-empt court action, they probably would have had a better shot at limiting its spread. Now, since the arguments about limiting its spread don’t hold up (because of conflict of laws precedent), they just look frightened and punitive, and the trope of judicial activism looks fairly weak, in my view.

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