Demosophia

Andrew, Marriage and States Rights

Andrew Sullivan is an extraordinary intellect and a dedicated [classical] liberal, but the following argument is so facetious that I just can't let it pass:

The assumption that there must be a single national definition of marriage -- traditional or open-ended -- is mistaken and pernicious. It is mistaken because the existing constitutional framework has long accommodated differing marriage laws. This is an area where the slogan "states rights" not only works relatively well, but also has traditionally been left to do its job. We are familiar with the problems of integrating different marriage laws because for the last 200 years the issue has been left, fairly successfully, to the states. The assumption is pernicious because the winner-takes-all attitude that it engenders now has social conservatives pushing us down the constitutional-amendment path. For those who see the matter in terms of gay rights, this would be a tragedy. But it would also be a tragedy for those who genuinely favor local autonomy, or even those of us who genuinely favor keeping the constitutional text uncluttered by unnecessary amendments.

Setting aside, for the moment, the issue of whether or not a Constitutional Amendment is the best way to deal with this situation it is simply not relevant to claim that such an amendment is invalid because "the existing constitutional framework has long accommodated differing marriage laws." If the amendment were passed it would still accomodate "differing marriages laws" as long as they were between a man and a woman. What the amendment does is to explicitely express what was been assumed sacrasanct for thousands of years. And the only reason it must now be expressed, is that the sanctity of that definiing characteristic is being questioned. The situation would be the same were there a significant movement to demand recognition of polygamy, or a number of other nonstandard arrangements. And the Constitutional option is only required because a judicial decision in one state casts into doubt the validity of that assumption that marriage is exclusively an opposite sex union. The appallingly impoverished decision of the Massachusetts court that "what is not forbidden must be allowed" simply forces the hand of those interested in preserving a status quo that is, almost certainly, worth preserving.

The Massachusetts decision may have applied an inappropriate principle to a state, but the fact that such a departure has legitimacy in one of the original thirteen states suggests that it is more than a matter of local deviance. And why should the people of New York or California be subjected to the experimental conditions of such a radical, and potentially disastrous, change in norms if we can be assured that the Europeans are all too willing to allow the experiment to be conducted on their populations?

Of course, were the Amendment to pass and the experiment in Europe to prove a resounding success it might well be necessary to repeal the Amendment. But that possibility is apparently apparently somethig we will have to live with, because passage is necessary in order to keep the ratchet from making a couple of extra, unneccessary and potentially very costly, clicks. It's a little like opening the chest cavity of a patient in order to install a third heart valve. For all we know it might be a great idea, but once we've begin to cut...

I guess I have to acknowledge that I've moved off of the "federalism" position, because I just think it's wasteful. Social experiments with potentially devastating consequences are already underway elsewhere, so I see no need to take the risk here in the US, even if it could be limitted to few states. And this is especially true when the change in state policy comes about not through a popular referendum, but through a judicial decree.

A Constitutional Amendment is an unfortunate necessity, I think. Unless the proponents of SSM are willing to back off for awhile, which isn't very likely.

Posted by Demosophist at March 9, 2004 08:04 PM | TrackBack