April 05, 2004, 8:53 a.m.
Amending Maggie Gallagher
She’s still wrong about Orrin Hatch’s proposal.

Over the last month, some conservatives have been debating how, precisely, to try to amend the Constitution to keep the courts from redefining marriage to include same-sex couples. The dominant camp has favored a Federal Marriage Amendment that would define marriage as the union of a man and a woman. Senator Orrin Hatch has floated the idea of instead amending the Constitution to remove this issue from the courts. While he favored the FMA, he thought this idea was more narrowly targeted at the problem at hand and more likely to be enacted. For this idea, he was subjected to some fairly harsh attacks on his motives from the likes of the Family Research Council.

For the time being, the opponents of Hatch's idea have won this battle. They continue, however, to lose the war. It still seems highly unlikely that the Congress will vote for the FMA by the necessary two-thirds margin. If the FMA crashes on the Senate floor, Hatch's idea may well be resurrected. It is therefore worthwhile to address the arguments that the conservative opponents have marshaled against it.

Maggie Gallagher made some of these arguments in an article for The Weekly Standard. I replied to her arguments on NRO (scroll upward from here). Gallagher then had a rejoinder on NRO.

Gallagher makes, by my count, nine arguments against the Hatch proposal. I'll list them with my responses.

One: Judicial activism is not the only problem the amendment ought to address; the attempt to redefine marriage involves mayors, attorneys general, and ministers rather, not just judges. It is true that the Hatch amendment would not block Unitarian ministers from conducting same-sex marriage ceremonies. Neither would Gallagher's preferred FMA. The mayors and attorneys general to whom she refers are making constitutional claims that ultimately depend on activist judicial decisions. The Hatch amendment would obviate those claims and stop those decisions.

Two: "The problem, both legally and politically, with the Hatch language is that [it] changes the topic from marriage to federalism." Both topics are already part of the debate over the FMA. If we were debating a Hatch amendment instead, the force of the federalist objection would be considerably weaker. The pro-traditional marriage argument, on the other hand, would be stronger. It would be possible for backers to say, with more clarity than before, that a vote for the amendment is a vote to let the people keep marriage as it is — and a vote against it is a vote to let judges redefine the institution. Opponents would not be able to hide behind (or even sincerely make) the claim that they oppose same-sex marriage but want to let states decide the issue.

Three: Switching from the FMA to the Hatch language "suggests in a profound way that we agree" that marriage "is not a key social institution," but "one of many 'social policies' best left to individuals or to the states to work out." It suggests no such thing, in either a "profound" or a banal way. Property rights and contracts are key social institutions, but for the most part we leave their definition to the states. We did the same thing, in many respects, for marriage in this country from the Founding until today. That didn't mean we didn't think marriage was a key social institution. It is only the courts that have made it impossible to keep this arrangement in place. A Hatch amendment would return us to the legal world of 12 years ago, when nobody thought that we needed to define marriage in the federal Constitution to underscore its importance.

Four: "The Hatch language won't stop state courts from recognizing gay marriages performed in Canada." The Hatch language gives state legislatures (or the citizens via ballot initiative) the power to define marriages for that state's purposes. Legislatures would have the power to decide whether and to what extent to recognize other jurisdictions' same-sex marriages. Even if a court attempted to fill a legislative silence, a simple statutory change by the legislators would suffice to reverse it.

Five: The Hatch language allows states to ban interracial marriage and would create a huge political problem for that reason. I've addressed the legal claim here. As for the political claim: Supporters of the Hatch amendment will have to answer false claims about its meaning. This is also true of the FMA. False claims just have to be answered. It would help if Gallagher wasn't doing her part to spread them.

Six: The courts will ignore the intent of the Hatch language to do all kinds of terrible things. "[I]f we had courts bound by the intent of the framers we wouldn't be facing this problem, would we?" So now the courts are the problem? I thought Gallagher's argument was that we would have a problem even without the courts. There goes Argument One, and most of Arguments Two and Three. If Argument Six is correct — that judges are so far gone that there's no way an amendment can constrain them — then the FMA is pointless too.

Seven: "If 'civil marriage' is defined by the state legislatures alone, the Hatch language asserts rather forcefully that marriage is a creature of government. If it's okay to give the citizens, along with state legislatures, the right to create marriage, why shouldn't a creative court rule that the people can create same-sex marriage, too?" This is perhaps Gallagher's most bone-headed argument. The Hatch language concerns what governmental actors have the power to change certain governmental policies concerning marriage. Those policies are, in a sense, creatures of government. The FMA does not avoid this alleged problem. By saying that the constitutional-amendment process can declare marriage to be the union of a man and a woman, are we saying that marriage is a creature of the amendment process and that it would be perfectly fine to amend the Constitution to define marriage in some other way? Well no, of course not. As for why a creative court shouldn't rule that the people can create same-sex marriage: If the people by referendum decide to recognize same-sex marriage, the courts would have to recognize that decision under the Hatch amendment. But a "creative court" would be barred, by the terms of the amendment, from pretending that the people had done that when they had not. The federal courts would be empowered to stop any rogue state court attempting such a move.

Eight: "By creating a complicated debate over federalism, rather than a simple and clear debate over the meaning of marriage, the Hatch language will provide multiple 'hatches' for political officials who either secretly support or don't care about gay marriage to escape the political consequences of their views." What Gallagher is saying here amounts to this: The Hatch amendment would win the support of people who would not support the FMA. That's a good thing, not a bad one! If the escape hatch is to stop the courts from imposing same-sex marriage, she ought to welcome it.

Nine: The FMA resulted from a slow, painstaking process of consensus-building among social conservatives, and we should not throw a "monkey wrench" into the debate now. If building a consensus among these groups were all it took to pass a constitutional amendment, we would have a Human Life Amendment and a School Prayer Amendment now. To repeat a point I made in response to Gallagher's last blast: Who are the 20 Democratic senators who might even in theory be willing to support the FMA?

The social-conservative groups are circling the wagons now and trashing Hatch. I have seen joint letters against Hatch including signatures from people who three weeks ago were saying they liked Hatch's idea. They were open to the idea, that is, when they didn't have other social-conservative groups looking over their shoulders. If the social groups want to have a debate whose purpose is to prove that there's nobody more opposed to same-sex marriage than they are, that's fine. It will probably make them all some money. It is less likely to result in an actual amendment to the Constitution.