Strengthening Constitutional Self-Government

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Rauch on federalism and gay marriage

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 state’s marriage regime on all the states, or imposing its own marriage regime on all the states.

Rauch’s 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 wouldn’t 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 Rauch’s 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.

I’ll concede Rauch’s point that the amendment is highly unlikely to attract 67 votes in the Senate, but so what? That doesn’t make it a merely political measure. If you’re 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.

Discussions - 5 Comments

Rauch is pretty tricky: He says we shouldn’t have same-sex marriage until a majority of Americans are convinced by guys like him that it’s good for marriage and good for Americans. Most of his book defends the pooposition that same-sex marriage doesn’t undermine the social virtue connected with the institution. But he lapses from time to time into the language of eqaul, individual rights. So someone should tell him to straight out condemn any and all judicial solutions to this national controversy as contrary to the constitutional principle of judicial restraint. Because he won’t do that, "we," as Joe says, have to say that only amendments--state and national--can protect the people from the judiciaries. Here’s the question for Rauch: Would you accept an amendment thtat withdraws jurisdiction from the courts on determining the "content" of marriage?

Rauch Rewritten:

All right, so the Democrats are having their best year ever. They have a secret weapon. Not an ABM, MIRV, or MX. A SCOTUS. Not the SCOTUS we have, but the SCOTUS they hope to have some day, some how. A SCOTUS full of Darth Vader Ginsbergs who will abort the Constitution of these United States of America and replace it with words of atheism, socialism, communism, globalism and a whole lotta other isms, but not monotheism and not mono-anything-else-ism.

Those wascally wepublicans are trying to circumvent this embrionic stem cell SCOTUS with something called the Marriage Protection Amendment, but It has zero chance of passing because The MPA would amend the U.S. Constitution to forbid gay couples to marry and because many conservative voters seem to have noticed that the same Republican politicians who are trotting out the marriage amendment have also spent up a storm, created the biggest new entitlement program since LBJ’s Great Society, riddled the budget with earmarks, and approved unprecedented restraints on political activity. And you know what that non sequitur means.

Whatever its political merits, the MPA remains as unwise substantively as when it first came up in 2004. This sentence will not be explained because I do not know what the word "substantively" means. Next, I am going to explain why gay marriage is a good idea.

Why should the federal government usurp the SCOTUS’s authority over marriage? I have taken a poll and both amendment supporters I talked to have insisted that gay marriage anywhere would soon spread everywhere. Whoopie!!!

Actually, states have defined marriage differently for most of the country’s history. Some call it gettin’ hitched, some call it weddin’, some even call it takin’ a bride.

It is precisely because marriage is so important to divorce lawyers that one-size-fits-all is the wrong approach to safe sex and gay people need to get married so they don’t have to look for sex in all the wrong places, as if that would stop them.

The national Republican leadership’s bid to upset this emerging equilibrium is demagoguery. I have no idea what that means, but I heard Ted Kennedy say it once which is sad. Conservative politicians’ betrayal of federalist principles, by trying to amend the constitution, is sadder. And this article is saddest of all.

Uncle Guido, that was brilliant writting.


I haven’t read Rauch’s book, but I’m confused by your criticism of it; you seem to be saying that one cannot view gay marriage as both supportive of the kinds of habits and virtues that sustain marriage as such and as expressive of a view of equal rights. Where’s the contradiction? Marriage for heterosexual couples is defended as both (1) encouraging certain virtues such as caring devotion to another, and as (2) guaranteed by an individual’s right to make associational choices that are expressive of deeply human needs. See Article 16 of the UDHR, for example. The question is what class is entitled to equal treatment, not whether equality is applicable at all.

And I’d turn your challenge to Rauch back at you: would you accept state-by-state variations in legislative approaches to gay marriage if it were clear that the current statutory framework limiting interstate standards would hold? In other words, why support a national definition of marriage rather than a constitutional amendment leaving the question to individual states? In its current form, the FMA - if successful - imposes a national solution on unwilling states. What’s the point of that?

If the problem is really interstate judicial imposition, there’s an easy solution: prohibit interstate imposition as a constitutional matter. Rauch’s argument is that the problem that FMA seeks to solve isn’t interstate imposition, but the need for enemy constructions - and stalking horses - during an election year. Especially given the hopelessness of the amendment, you can see his point regardless of your position on gay marriage as such, I think.

I guess I wasn’t so clear, because I think you and I are for the same amendment:
1. If Rauch is serious, he should support an amendment that both gets the fed. courts out of the marriage business and "constitutionalizes" the Defense of Marriage Act--to insure that what goes on in Mass. stays in Mass.
2. The result would be the American people acting through the states would be able to be persuaded or not on Rauch’s "social" argument, because the Const. would ensure that the whole thing wouldn’t be decided by a one-sided Court decision based only on the evolving view of liberty or individual rights promulgated by Kennedy in LAWRENCE.
3. So the HISTORIC COMPROMISE toward which you and I and a clear thinking Rauch point would both allow state-by-state variation and protect those with reasonable objections to same-sex marriage from having their opinions marginalized as those of enemies of undeniable const. rights. (The Defense of Marriage Act, let me emphasize again, can’t pass and its proponents are deluded if they believe there can be a const. solution to the country’s creeping and sometimes creepy libertarianism. They have to give a persuasive argument that a reasonable limit to individual rights (which, of course, gay people have) is a law limiting marriage to btwn. a man and a woman. Conservatives have to stop blaming the gays and their agenda and start admitting that the long-term individualistic deconstruction of marriage created a situation in which the gays could reasonably say--why not us? Americans are now STUCK with arguing about what marriage is all about.) Again, read my article in SOCIETY, to which this is a kind of a footnote--I guess I will get around to officially writing it up.

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