Jonathan Rauch argues that the Marriage Protection Amendment is unnecessary, especially given the appointments of John Roberts and Samuel Alito to the Supreme Court. This is unpersuasive, since (of course) a subsequent President could reshape the character of the Court in any number of ways, some of which would permit the very thing proponents of the Marriage Protection Amendment fear--the federal judiciary imposing one states marriage regime on all the states, or imposing its own marriage regime on all the states.
Rauchs other arguments are also unpersuasive. Consider, he says, abortion. Opponents of abortion want a federal solution there. Why not accept his federal solution here? My response is that, yes, many opponents of abortion argue that, absent any explicit Constitutional language, abortion ought to have been left for state regulation. But the Court, they also argue, was willing to impose a national solution on abortion. Why wouldnt the Court be willing to impose a national solution on gay marriage? The language of equal protection seems more likely to yield that result (and the pieces--Lawrence v. Texas and Romer v. Evans--are in place) than in the case of privacy and abortion, which required a great deal more, shall we say, judicial ingenuity. So if everyone could be confident that no federal court would find any basis for imposing gay marriage on the nation, they might not be interested in an amendment. But Rauchs reassurances, given his own position in the debate, are hardly comforting.
Rauch also argues conservatives are supposed to be friends of the legislature, but an amendment would take matters out of legislative hands. Sort of. After all, state legislatures would be called upon to ratify the amendment. At most, in other words, it would take matters out of some state legislatures hands (those that wanted to enact legislation providing for gay marriage).
But the bottom line concern remains the behavior of the judiciary, which Rauch tries to downplay or dismiss. I would prefer to make all these arguments in the legislative arena, but judges have a habit of not letting me do so.
Ill concede Rauchs point that the amendment is highly unlikely to attract 67 votes in the Senate, but so what? That doesnt make it a merely political measure. If youre trying to influence the wider culture, then this is precisely the sort of thing you do. And if you wait until the courts have presented you with a concrete problem, it may be too late effectively to do anything about it.