Volokh conspirator Dale Carpenter has written (or rather rewritten) an essay against the Marriage Protection Amendment. He tries to reassure us that there is no immediate national judicial threat to traditional marriage, because, after all, federal courts rarely depart that far from public opinion. Of course, he also indicates his belief that public support for experimentation in marriage (to put it mildly) is increasing. Proponents of an amendment thus "undemocratically" mistrust (evolving) public opinion. Stated another way, his opposition to an amendment (dealing with, as he puts it, a hypothetical) is a holding action until public opinion catches up with elite opinion. In other words, our push for an amendment protecting traditional marriage is only justified when it’s too late, when the supermajorities that might support it have vanished.
If your only values are democracy and the expansion of rights, you might find Carpenter’s argument congenial. He is officially a big fan of federalism as well, as long as it leaves room for the rights he cherishes. Thus for example he does note that states have traditionally been given free rein in family law, and we’ve tolerated the (relatively minimal, by comparison with what’s in the offing) differences between them. The one major instance of Supreme Court intervention (leaving aside polygamy in Reynolds v. U.S.) is Loving v. Virginia, which invalidated that state’s anti-miscegenation law. As he puts it,
The decision altered state law to uphold individual rights and to make the institution of marriage more inclusive, not to derogate individual
rights and to make marriage more exclusive.
I can imagine him defending a Supreme Court decision overriding state attempts to protect traditional marriage in precisely the same language.
He offers some interesting concerns regarding how the language of the amendment might be interpreted (which I regard as appropriate, even if I don’t necessarily agree with all of them). I find that it’s just a little curious that arguments about hypotheticals are appropriate when opposing the amendment, but not when favoring it.
He seems to suggest that a more narrowly tailored amendment (ruling out judicial activism above all else) might not be subject to his objections, though I wonder whether he’d support even that.
Libertarians make very important contributions to public policy, but it seems to me that too many are blind to the accumulation of moral capital in a society that makes it possible to have limited government—and to the possibility of rapid and permanent depletion of that moral capital. The traditional institutions of marriage and the family are the best means discovered for building up that moral capital and producing citizens capable of self-government. As the damage already done to those institutions in recent decades shows, well-intentioned reforms (e.g., no-fault divorce and welfare policies that inadvertently encourage fatherless families) can have dramatic negative consequences.
The string at Bench Memos also calls our attention to these pieces: two articles by Stanley Kurtz, a piece by AEI’s Michael Greve proposing a "Constitutional DOMA," and this exchange at the Yale Law Journal’s The Pocket Part.
This ought to keep everyone busy for a while.