Restuffing Straw Men

Anthony Rickey applauds Professor Michael Dorf for knocking down three "straw men" arguments against the Federal Marriage Amendment.  Rickey thinks the professor did a fine job of "boiling the argument down to where it lies: the FMA is wrong if you think same-sex marriage is right. Conversely, though he doesn't state it, I'd say the FMA is right if you think same-sex marriage is wrong."   I think there's a reason Dorf never said it.  A statement does not imply the converse.  Dorf merely showed how certain arguments alone did not suffice as reasons to oppose the FMA, more was needed.  His main emphasis was that such arguments missed the most important reason for opposing it.  That does not mean that the "straw man" arguments raised could not or should not influence a decision to oppose the FMA.  Let's take them one at a time.

States' Rights

Dorf saw two problems with the states' rights argument.  One was that it was disingenuous for people who thought DOMA unconstitutionally limited Full Faith and Credit, to then argue this matter should be left to the states.  This is true, but there are others (like Andrew Koppelman) who argue that while DOMA has some problems, they don't stem from Full Faith and Credit.   Certainly one could oppose same-sex marriage and want it banned in one's own state, but want to allow other states to reach different conclusions.  This is especially true if the argument against same-sex marriage is "the people should be able to decide on their marriage law".  Different people in different states might reach different conclusions.  Dorf also points out that the federal government has interfered (and most people, especially SSM advocates, would say rightfully so) in states' marriage laws by prohibiting bans on interracial marraige.  That demonstrates that states' rights alone is not enough to oppose the amendment.  But one can believe that an individual as a citizen of the United States should have certain basic rights no matter where he lives.  This argument only applies to the FMA if one similarly believes that an individual has a basic right to not have his state recognize same-sex marriage.  Some people might believe that, but there are others who simply oppose same-sex marriage as poor policy and not an encroachment of basic rights.  Such people should have no problems with other states having other policies.  Of course there is a legitimate concern that a federal judge will interpret the US Constitution as requiring recognition of same-sex marriages nationwide.   If that is what one is opposed to, an alternate amendment would suffice.  Something like, "Nothing in this Constitution shall require a state to offer marriage to a couple of the same sex, or to recognize such marriages performed elsewhere."  Don't get me wrong.  I would still oppose such an amendment, but it would at least alleviate the states' rights concerns.  The fact that such an amendment is not pursued discredits the notion of "we're only doing this to prevent one state from forcing same-sex marriage on the whole nation" or "we're only doing this to ensure the constitution is properly interpreted".   

Constituional Amendments Should not Shrink Individual Rights

Dorf points out that the prohibition of slavery eliminated the slaveowner's "property rights", and FDR was prepared to propose an amendment to eliminate the "right to contract" that states had used to void labor legislation.  These were cases of eliminating (or proposing to eliminate) some individual's rights which were considered to have interfered with the individual rights of others.  This argument would only apply to the FMA if one believed there was an individual right to not have same-sex marriages recognized by one's government.  Those who feel that way probably should support the FMA, but for those who oppose same-sex marriage on policy grounds this is not an issue.  Again if the concern were the federal courts preventing a state from pursuing the policy, an alternative constitutional amendment would suffice.

This Isn't the Kind of Thing You Do By Amendment

Dorf points out that that if the amendmet secures the votes, then people thought it was something for which it was worth amending the Constitution.  If people don't believe it's worth amending the Constitution it won't  secure the votes.  That's true.  It does not mean that whether this rises to the level of Constitutional amendment will not or should not be a factor in supporting it.  I don't believe every law with which I agree should be constitutionalized.  I think that's the reason an Act to Prohibit Flag Burning got many more votes than the amendment necessary to overturn a court deciding such an act was unconstitutional. (The bill passed 91-9 in the Senate and 371-43 in the House.  The amendment has yet to come out of Congress.)

Those who believe that there is no constitutional right to same-sex marriage, and nor should there be, might consider amending the constitution to make that clear.  I would oppose it, because I believe there is such a right and there should be such a right.  What FMA proponents have to explain is why it is so important that states not grant this right either.  I'd also be interested to know if they feel that foreign countries should also be pressured to not grant same-sex marriages. 

Comments

[A. Rickey]

Just on a minor point--my last name has an 'e'. ;)

[Galois]

Oops. Sorry about that, it's corrected now. By the way, you correctly noted in an e-mail that if one believes SSM is wrong in the sense of slavery--or as some would view abortion or capital punishment as wrong--nothing I said would indicate a reason to oppose the FMA. In fact, in that case I think one should support FMA. I was taking "wrong" to mean "opposed to", but on hindsight if you had menat "opposed to" that's probably what you would have said.

[A. Rickey]

In fairness, while they don't mean the same thing, most of the time 'opposed to' does mean 'wrong.' One of the reasons I blog about banning same-sex marriage so much is that it's a case of an end I'm not convinced is wrong, but I'm not opposed to it, either. ;)