Saturday, February 28, 2004

Let the State Legislatures Decide

Old Post: I mentioned that this might already be Bush's game plan below.

It looks like I'm not the only one arguing that the amendment should put the gay marriage issue directly before the state legislatures and forbid the courts from gainsaying them. A brief sampling:

Baseball Crank makes his case for "an amendment that would do nothing more than leave exclusively to each state's legislature the question of what kind of marriages or civil unions to approve."

The Wall Street Journal shares its opinion: "We think this entire issue should be decided in the states, by the people through their elected legislators. And if the voters want to alter the definition of marriage as a new social consensus develops, that should be their democratic right."

James Taranto of Best of the Web says
We'd say he [Bush] left the door open to our proposed amendment, which would prevent federal judges from imposing same-sex marriage on the country while leaving states free to enact it if they wish.

If he walks through that door, John Kerry will be in an uncomfortable position. Kerry claims to support "states' rights" on marriage, but he voted against the Defense of Marriage Act, a statute aimed at protecting precisely those rights. If the debate were over a states' rights amendment, he would be forced to choose between his stated position and his most extreme supporters.

John Hawkins of Right Wing News has that if we can't get an amendment defining marriage, then we may be able to get a compromise one:
That would be an Amendment to the full faith and credit clause to insure that the legislators of each state, not the courts, would make the decision on gay marriage and that their rulings would not impact other states. I think that kind of Amendment would have a much better chance of being passed because it would expose anyone who opposed it as zealots who want activist judges to impose their agenda on the rest of the nation.

And I've already mentioned Ramesh Ponnoru, who said, "I favor a constitutional amendment that would block both the federal and the state courts from instituting same-sex marriage, civil unions, or from leaving marriage eligibility alone but extending some of its benefits to the unmarried."

With all these minds coming to the same conclusion (some of them actually, you know, influential, unlike mine), I'm thinking it may actually happen this way. I wish I could take credit for this idea, but hey, they published first, and influenced me in the process. It's a brilliant political move, and could very well give us the amendment. The trick is to get enough Democratic Congressmen to express support for a "moderate" approach in opposition to the "far Right, religiously motivated" amendment, before pulling the rug out from under them. Once enough of them say it should be up to the states, then none of them can protest an amendment which ensures that it's up to the states. Put it in terms of a democratic decision decided by the state legislatures, and the faux-populist Democrats will have trouble coming up with an argument that doesn't sound like it comes straight from a lobbyist's mouth. They can splutter all they want about bigotry, but what they're really arguing is that the American people are inherently bigoted, so they can't be trusted to write their own laws. As for approval by the states--there's no way they wouldn't sign on to this. First, it solidifies the power of state legislatures, and I can't see legislators refusing that. Second, thirty-eight states have already passed laws or state constitutional amendments forbidding gay marriage. Third, the Massachusetts legislature will leap at the chance to give their bossy Supreme Court a black eye, so there's one more.

The only danger I can see is if I'm wrong about Bush and the Republicans in Congress. Are they willing to compromise for an amendment that will pass, as opposed to one that won't? Can they get it past the Democrats who will try to hole it up in committee, deride it as bigoted, and do everything in their power to keep it from a fair hearing and a fair vote? Once it's up for a vote, I think most Democrats will vote for this, because it's identical to their stated position, and they'll face the wrath of the voters if they don't.

Update: David Frum goes into reasons why a state by state solution wouldn't work. I may say more on this once I've had a chance to think about it.

New Post: Orrin Hatch supports this solution, above.

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