1. You may have noticed that the editors of the Wall Street Journal came out against it this morning. They don’t think the Constitution should block same-sex marriage. But they came out for a constitutional amendment that would take the issue away from judges. Their position is very close to my own, and it entails their opposition to most of the specious arguments made against the FMA. Most of the editorial is taken up with refuting those arguments.
2. Proponents of the FMA, including several on this site, keep saying that we are going to have a national policy, and the only question is whether that policy includes or excludes same-sex marriage. Either there will be a national no same-sex-marriage policy through FMA, or the judges will impose same-sex marriage everywhere. But this set of alternatives assumes that we don’t make a national decision not to have a national policy: by passing an amendment that leaves the decision to state legislatures. It is unlikely that we will pass such an amendment, of course, because it is unlikely that any amendment will pass–but that is obviously true of the FMA too. (It is, indeed, one of the strengths of the litigative campaign for same-sex marriage that it backed opponents into the position where their only hope of prevailing was to go the extremely difficult route of amending the Constitution.)
3. How bad has Senator Frist’s choreography of this debate been? In Roll Call, Mark Preston reported that Democrats were willing to allow an up-or-down vote on FMA, blocking both amendments and filibusters. Republicans decided to reject the offer, and so what we had was a vote on whether to vote on the FMA. From what I can gather, Republicans had three reasons for this: (1) They thought that it would be easier to prevail on future FMA votes if senators didn’t compile a record of voting against it. But that means that they have to get senators who thought that the FMA was not even worth voting on to vote for it. It’s not obvious that this will be easier than switching a vote. (2) They thought they could make the Democrats look obstructionist, since they were voting against a vote. But that assumed that the media would not tell the full story of the rejected offer. That strategy has thus already failed. (3) They thought a defeat on the FMA would be more demoralizing to social conservatives than a procedural defeat. How does that make sense? Is it better for social conservatives to see that most senators don’t think their priorities are even worth a vote? When Republicans try to be clever, the results are rarely what they would wish.