Liberal and even moderate critics of President Bush, even generally sympathetic ones like Jonathan Rauch of the National Journal, nearly always object to his support for a constitutional amendment barring same-sex marriage, calling it, as Rauch puts it, “a radical and unnecessary alternative that, by federalizing what ought to be a state issue, pours gasoline on the fires of the culture war.”
This states rights critique is of a piece with the criticism of the successful Republican argument in Bush v. Gore, a criticism usually couched in the form of a “Gotcha!” that conservatives, who say they support states rights, favor dismissing or overriding decisions of states when they don’t like those decisions.
But wait a minute. What exactly is a state? Who speaks for it? This question reveals a significant similarity between the position of the president and many conservatives on the same-sex marriage issue and their position re Bush v. Gore: in both, they refused to cede sovereignty to runaway state courts. Just as liberals have come to rely on federal courts to determine policy on controversial social issues where they lack popular majorities (racial preferences come easily to mind), so too when they now proclaim their devotion to states rights they usually mean the decisions of state courts, not the preferences of a majority of the people in a state. L’etat, c’est le court!
Indeed, this rejection of state judicial supremacy is at the very core of the call for a federal constitutional amendment. Here’s how the president explained and justified his position in the second debate:
I proposed a constitutional amendment. The reason I did so was because I was worried that activist judges are actually defining the definition of marriage, and the surest way to protect marriage between a man and woman is to amend the Constitution.
It has also the benefit of allowing citizens to participate in the process. After all, when you amend the Constitution, state legislatures must participate in the ratification of the Constitution.
I’m deeply concerned that judges are making those decisions and not the citizenry of the United States. You know, Congress passed a law called DOMA, the Defense of Marriage Act.
My opponent was against it. It basically protected states from the action of one state to another. It also defined marriage as between a man and woman.
But I’m concerned that that will get overturned. And if it gets overturned, then we’ll end up with marriage being defined by courts, and I don’t think that’s in our nation’s interests.
You think I overstate? Try this thought experiment: if the president had proposed a constitutional amendment placing exclusive authority over marriage in state legislatures, how many Democrats would still march under the banner of states rights?
Is it the amendment supported by the president that “pours gasoline on the fires of the culture war,” or is that amendment an attempt to put out the fires ignited by activist judges?
UPDATE
Jonathan Rauch writes that he has addressed some of these points in a discussion here, and indeed he has. As usual, his argument is clear, cogent, and respectful of those with whom he disagrees. He makes some telling points against the Federal Marriage Amendment (the one actually proposed, not my hypothetical) and also makes a good argument for the role of courts, as Nels Nelson did in a comment here below.
I find his argument that courts should not be excluded from defining marriage to be less persuasive.
… gay-marriage opponents often shift to arguing that marriage should be turned over to the Feds if it is not left to the legislatures of the states. In other words, state courts should be cut out of the process, even at the cost of cutting out states altogether. (That’s what the Federal Marriage Amendment would do.) In order to sustain this position, some gay-marriage opponents … embark on a vigorous campaign of court-bashing.
Big mistake. The courts are a coequal branch of government, and they exist in large measure to protect against tyranny of the majority. As the founders well knew, legislatures are vulnerable to populist demagoguery, interest-group manipulation, and oppressive zeal. Gay couples, like all Americans, are perfectly entitled to turn to the courts when legislators turn a deaf ear, and the courts are duty-bound to consider these claims (and they’re also duty bound to follow the law–not their personal preferences).
I don’t really disagree with anything Rauch says here (and for the record I should note that I am not necessarily a gay marriage opponent), but this argument largely begs, or perhaps a better term is avoids, the question. Taking state courts out of the equation by state constitutional amendments, or taking state and federal courts out with a federal amendment, would not be the work of a mere majority or majorities. It would be the work of “the people” (that quaint 18th century term would still apply here) rewriting their fundamental law through a constitutional revision. It is of course true that rights protected by our constitution(s) may not be infringed by majorities, but it is no less true that “the people,” in writing and rewriting their constitution(s), and not the courts have the last word on what those rights are and what roles courts and legislatures are allowed to play in protecting them.
If amendments are approved in the states, or if one were to be approved federally, it would not be because “the people” had rejected the idea that courts are a “coequal” branch of government. It would be because too many courts have acted as though courts alone have the ability to interpret fundamental law. They have all to often, in short, acted not coequally but supremely.
Try this thought experiment: if the president had proposed a constitutional amendment placing exclusive authority over marriage in state legislatures, how many Democrats would still march under the banner of states rights?
Why not an amendment that places authority over marriage in the states, regardless of how or by whom the decisions are made, and removes all authority from Congress and the U.S. courts? If the people of Louisiana want to pass a state amendment, let them. If the people of Massachusetts want to let stand the decisions of their courts, let them. Why the need to protect people from themselves?
Nels – I could go along with that. Still, a federal amendment wouldn’t impose of the type I threw out wouldn’t impose anything on a state. If Mass., say, approved of its supreme court’s decision, it could simply provide for same-sex marriage through legislation. It is conceivable, I suppose, that the majority of the people in a state, maybe Vermont or Mass., could say, “We prefer marriage as traditionally defined, but we want to preserve the ability of our supreme court to tell us that we’re wrong about this.” Somehow that theoretical possibility doesn’t seem weighty enough to deprive majorities in all the other states of the ability to make their own decisions, not second-guessable by judges, about this one important matter.
One of the rights a state (that is, the legislature, as the body most representative of the people) has is to join with other states and change the federal constitution to enforce something on all the states, if enough agree. That’s one of the things a colony/territory commits to when it becomes a state, isn’t it? So, it seems to me, the adoption of a federal constitutional amendment (whatever it might be, however wise or unwise) is an exercise of states rights, not a denial of them.
John, state courts interpret state constitutions on many other issues. If the people didn’t want to be second-guessed they would have abolished these courts or generally restricted their powers, so I don’t see it as a theoretical possibility that these checks and balances are desired; in fact it appears to be the preference of the people in all 50 states. The courts are essentially the people’s lawyer, rendering legal advice and cautioning them against certain actions. If the people of each state choose to overrule their judges, hire new ones, or fire their counsel and represent themselves, they can.
And here is a question I’ve had since the FMA was proposed: if the concern, as the President said, is that the federal DOMA will be overturned, why isn’t the FMA simply a copy of the DOMA? Why should 49 states care what one does, if that one can’t impose itself upon them?
No, ELC, that would by definition be an abrogation of states’ rights. One of my rights as an individual is the right to vote. But it’s hardly an exercise of individual rights if I, as part of a majority, vote that everybody must wear red on Tuesdays.
Nels – For the reason you give, and others, I’m not at all sure that support the FMA. On the other hand, if the people of the several states, acting in the manner provided by Article V, decide that they believe marriage is a matter of such fundamental importance that its definition deserves to be embodied in the fundamental law, they certainly are entitled to revise the constitution to reflect that belief.
As for state courts, my hypothetical would not evicerate them or remove their general powers of judicial review. It would simply provide that, on this issue, the people want their legislatures to have the final word. It is useful to remember that all branches of government, including courts, have only those powers that are granted to them by the people through their constitution(s).
Republicans as fair-weather federalists is not a phenomenon limited to runaway state courts. AFAIK, no state has enacted a medical marijuana law by judicial fiat, but several states have enacted such laws through the legitimate legislative process.
It is useful to remember that all branches of government, including courts, have only those powers that are granted to them by the people through their constitution(s).
John, I wholeheartedly agree, but while I think the federal constitution is the proper place for setting the powers of the states, it shouldn’t be used to dictate how a state must apportion those powers within itself. In that regard, I prefer the FMA to your proposal.
It would simply provide that, on this issue, the people want their legislatures to have the final word.
…taking state and federal courts out with a federal amendment, would not be the work of a mere majority or majorities. It would be the work of “the people”…
There are two “the people”‘s at issue here, though, and you seem to conflate them. The majority will of the nation does not equal the majority will of each state. Just as I don’t think the U.N. knows better than the U.S. how we should govern ourselves, I don’t think those in other states know best how Virginia should rule itself. Those who don’t like the separation of powers within Virginia can either (a) try to change things from within or (b) take up residence in one of the other 49 fine states.
Majority will loses its potency the greater the geographical distance between people, and the greater the diversity of culture and thought amongst them. As one goes down the line from the individual, to the family, to local government, to state government, to national government, and to the U.N., decisions of the majority less and less represent the will of the people, though mathematically the principles remain the same. The stability of our system depends upon 49% of the people peacefully abiding the will of 51%. They are far more likely to do this if that 51% consists of their friends and neighbors, people whom they consider reasonable and sharing in their general values and goals, than if they don’t personally know anyone who is part of that majority.
The problem with a constitutional amendment on x is that it makes it nearly impossible for the people and the legislature to ever change their minds. I sometimes wonder whether it would be possible to craft an amendment that would effectively bind courts to give great deference to the other branches on a specific set of issues. Something like, “no law shall be interpreted to imply a right to x unless the law clearly, specifically, and explicitly establishes grants a right to x.” However, after seeing the parody of strict scrutiny that was Grutter I doubt that the courts are capable of respecting any deference standards except a bright line, if that. Since a no x amendment is possible but a no x by case-law amendment is probably impossible, the choice seems to be between yielding present sovereignity to an imperial court and yielding future sovereignity to an amendment.
While I think the trend towards gay marriage by judicial fiat is absurd, on the other hand, I have to admit that sometimes I think unpopular court decisions are absolutely right. Unfortunately I can’t define exactly why and how I draw the line but it inevitably comes down to how much of a stretch it feels like. For instance, I believe that a right to “speak” and “peacably assemble for a redress of grievances” definitely implies a right to burn a flag. On the other hand, even though I personally favor legal access to 1st trimester abortions, it’s taking it a bit far to hold that an emanating penumbra makes the constitution agree with me and downright ridiculous to hold that the penumbra emanates all the way out to the end of the second trimester. I’m rambling, but I guess my point is that in principle it is good to have courts which can impose unpopular policy, but neither should the courts deviate too far from the text to do so, and it’s impossible to create structural constraints that would always force the courts to walk the line properly.
Nels, xrlq, ELC, Gabriel – I think all of your coments are of an unusually high order, bordering on eloquence — althought that judgment may just be the excellent wine from my recent dinner out speaking. No, really; I think they’ll look good even when I’m sober.
Nels, spoken like a true, and true believing, federalist (small not capital “f”), a position with which I have much sympathy. I confess,though, that I still have trouble working up much sympathy for some state’s majority that wants to preserve the ability of its high court to tell it that it can’t protect through legislation something that it regards as tantamount to the moral foundation of its society.
Also recall that the federal constituion already tells states a number of things that they may not do, including some that, compared to the nature of marriage, are both trivial and involve the distribution of powers and responsibilities, such as the 17th Amendment’s requirement that senators be elected by the people and not, as many states had done formerly, by the legislature.
It is also worth recalling that the impetus to have a constitution in the first place derives from a desire to limit government. Constitutions are born in distrust of government power. Courts, as instruments of government, are as capable of abusing their authority as executives or legislatures, maybe more so since they are not accountable. If it should become widely believed that they have exceeded their legitimate authority in a given area, it is altogether fitting and proper (as an 18th century Virginian said in only a slightly different context) that their authority in that area be removed from them.
I agree that the power of the courts has gotten a little out of hand in this country. Supreme courts do serve as an important check to legislative and executive power, and, ideally, are essential to protecting the limited government framed by the constitution. The problem is that these courts, rather than defending the constitution from legislation, have begun to think of themselves as legislative bodies. In controlling the interpretation of the constitution, they have essentially granted themselves the ability to amend the constitution through judicial action. Much of the rather dubious talk of a “living, breathing constitution” stems from the shifting interpretations of the constitution due to changing judicial opinions. With apologies for using an over-cited example, Roe v. Wade essentially established a “right” without a constitutional amendment or any action on the part of the legislative or executive branches. Whatever side of the issue you stand on, it is difficult to argue that the right to an abortion is enumerated or guaranteed by the constitution.
The danger of this is that the opinions of a few judges can overrule the opinion of a majority of Americans. Judges, who are not elected and can only lose their office in extreme cases, can essentially redefine the law without realistic checks by the people.
That being said, I do not believe the gay marriage issue is the issue that should be used to limit the courts’ power. I don’t believe that the anti-gay marriage position is itself defensible, and would more than likely fail the amendment process, setting back attempts to limit courts. In the time it would take to ratify the amendment, public opinion may well shift to favor allowing gay marriage; in any case, this opinion shift will probably happen eventually, and it is unlikely that the marriage amendment would remain a permanent addition to the constitution.
Instead, we should choose another issue to rally behind. I propose ending racial preferences. As a student at the University of Michigan, I can see firsthand the effects of court legislation. The Supreme Court has essentially legitimized racial discrimination, so long as it has good intentions and is not directed against Native Americans, Hispanics, or African Americans. The dual ruling (undergraduate “points system” unconstitutional, law school racial preferences acceptable) has, rather than changing U of M’s policies, simply driven them underground and made them less accountable (a few days on campus also convinces one that it has failed to create a truly diverse, open, and multicultural community in any but the most superficial sense). I apologize for the tangent, but my point is that ending “affirmative action” is probably a better vehicle for limiting overreaching court decisions. Ending all discrimination of any kind is a more morally defensible position than legitimizing discrimination of homosexuals, so an amendment along these lines would be more likely to succeed and remain in the constitution.
“No, ELC, that would by definition be an abrogation of states’ rights. One of my rights as an individual is the right to vote. But it’s hardly an exercise of individual rights if I, as part of a majority, vote that everybody must wear red on Tuesdays.”
Sure it is.
If you can “argue” by mere assertion, so can I. :-)
Maybe the republicans who appointed the Massachussets court could, for example, not appoint that kind of court anymore.
FINALLY, I understand Bush’s position on gay marriage and civil unions!
His administration whole-heartedly supported the Federal Marriage Act, which read in part: “Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”
But now there is this:
“In an interview on Sunday with Charles Gibson, an anchor of “Good Morning America” on ABC, Mr. Bush said, “I don’t think we should deny people rights to a civil union, a legal arrangement, if that’s what a state chooses to do so.” ABC, which broadcast part of the interview on Monday, is to broadcast the part about civil unions on Tuesday.”
http://www.nytimes.com/2004/10/26/politics/campaign/26gay.html?oref=login
Flip, flop…flip, flop…
Actually, jean-paul, please allow Bush the same ability to clarify the nuances of his statement that you do to Kerry. With the disclaimer that I don’t support the FMA, read the full text of the FMA, specifically, that “Neither this Constitution or the constitution of any State, nor state or federal law, SHALL BE CONSTRUED TO REQUIRE that marital status or the legal incidents thereof be conferred upon unmarried couples or groups,” (emphasis added). Basically, this means that the FMA does not specifically ban civil unions. Rather, it states that the constitution does not GUARANTEE the right to “marital status or the legal incidents thereof,” (i.e. the constitution allows it but does not require it). This is intended to prevent state or federal courts from deeming laws denying marital status to be unconstitutional based on the federal constitution. It does not specifically prevent such unions from being made or allowed by state law, it just means that it is a state legislative issue and not a constitutional right.
This makes Bush’s statement completely logical. He supports (or at least tolerates) civil unions, but believes that it should be a state by state issue and not one that can be determined, as it is being done now, by a small number of judges in states like Massachusetts who can essentially force the rest of the country to accept Massachusetts marriage policy.
Now, you may legitimately disagree with this position, but don’t make the error of superficially dismissing it as a “flip-flop.” In any case, if you are a Kerry supporter, you would necessarily have to allow for a “change of opinion based on new information” ;).
As to actus, yes, MA could stop appointing that kind of court. The problem is that judges hold their position until they choose to relinquish it, and about the only check the legislature has is to amend the constitution.
Yes, the flip-flop thing was a little tongue-in-cheek. As for reading the whole text of the FMA, you seem to have missed that crucial first sentence: “Marriage in the US shall consist only of the union of a man and a woman.”
Haven’t states recognized marriage licenses issued by other states under the Full Faith and Credit Clause, though? So does the FMA make an exception to that, in the event that some states choose to confer ‘marital status or the legal incidents thereof’ on unmarried couples or groups?
And is Bush’s statement really “completely logical?” Do you think either he or his supporters in the Religious Right have been discerning between support for the FMA and support for a ban on same-sex marriage/civil unions?
Here’s an earlier statement from February 25 2004 from Bush:
“Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society.”
While it stops short of an explicit call for a ban of same-sex marriage, it doesn’t sound like support or toleration for civil unions.
What you said earlier about judicial acitivism: “The danger of this is that the opinions of a few judges can overrule the opinion of a majority of Americans.”
Isn’t that how the civil rights process, especially during the Warren Court, has historically occurred? I mean, the majority of Americans were opposed to the desegregation of public schools, and they were wrong. I think that the judges need the power to act with the long-sightedness that comes from their removal from the political arena.
Well, yes, the first part does define marriage as only between a man and a woman, but it doesn’t ban civil unions (they just can’t be “marriages”). That’s why Bush said, “I’m not opposed to civil unions,” and not, “I’m not opposed to gay marriage.” It did seem a little out of character for him to say that, but I was just describing how the comment could make sense without being a complete flip flop. At any rate, I don’t support the FMA so it seems silly for us to argue about something we essentially agree on.
Actually, I do think that my reading of the FMA would be a little closer to how the judges in Massachusetts would interpret it.
But that returns us to the main issue. The courts can do the right thing, as they did with sesegregation. However, their decisions are not exclusively good. The problem is that court decisions become de facto law, so the Supreme Court basically becomes a nine member legislative body. The elaborate checks and balances between the branches of government seem to have lost some of their bite.
Each of our courts consists of a small number of individuals who really have no accountability. As long as they faithfully abide by the intent of the Constitution, this isn’t a problem. However, the “living breathing document” doctrine has led to some pretty dubious interpretations of the Constitution. Essentially, by this standard, the Constitution can be construed to imply just about anyhthing, so the courts wield essentially supreme power- even a state court is extremely powerful because of the full faith and credit clause. We shouldn’t have our democracy’s laws determined by an oligarchal process.