Commentary on Alabama Law and Society

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Thursday, June 01, 2006

A Pre-Emptive Amendment

That is how Prof. Dale Carpenter describes the Federal We Hate Fags Marriage Amendment in this Cato Institute Policy Analysis, entitled "The Federal Marriage Amendment: Unnecessary, Anti-Federalist, and Anti-Democratic." (There is more from the author here.). From the paper:

In short, the fear of court-imposed, nationwide gay marriage is exaggerated and hypothetical. To amend the Constitution now to prevent it would be to do so on the basis of fear of a future, hypothetical adverse decision by the Supreme Court. Proponents of the FMA are asking the nation to amend the Constitution preemptively, something we have never before done. . . .

The Constitution should not be tampered with to deal with hypothetical questions as if it were part of a national law school classroom. It should be altered only to deal with some clear and present problem that cannot be addressed in any other way. We are nowhere near that point on the subject of same-sex marriage. The “problem” of nationwide same-sex marriage is neither clear nor present. At the very least, we should wait until an issue calling for a national solution actually arises before we address it by changing the Constitution.

(Now is when I would like to say something about how well things worked out the last time we solved a future adverse hypothetical problem with a pre-emptive strike. But that would be irrelevent to the issue at hand, and might make you so mad at me that you would not read the rest of the paper. So I won't say it.)

Read the whole thing. Whatever you think about gay marriage, the amendment is a bad idea, and this paper is a succinct and well reasoned explanation of the reasons the amendment ought to die. Here is one more quote, the author's summary:

To summarize the four main points: First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered, nationwide same-sex marriage unlikely for the foreseeable future. Therefore, an amendment banning same-sex marriage is a solution in search of a problem.

Second, a constitutional amendment defining marriage would be a radical intrusion on the nation’s founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights. A constitutional amendment defining marriage would be a radical intrusion on the nation’s founding commitment to federalism.

Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation’s traditions and history.