Thursday, July 15, 2004

Federal Marriage Amendment fails

Old Post: My last post on the Federal Marriage Amendment is here.

As you probably already know, the Federal Marriage Amendment failed to pass yesterday. To be honest, I was never a big fan of this version of the FMA. I much preferred Hatch's version, which I think could have passed with the proper politicking. My guess is that the Republican leadership thought it was more important to force a vote on the issue than to actually pass an amendment. That was a mistake.

First, although a majority of Americans oppose gay marriage, most won't go as far as an amendment. Dean Esmay says it's because there's not enough hostility toward gays. I think he's being unfair, as he seems to assume that the only reason to oppose changing the earliest known social unit would be hostility towards homosexuals. I think it's more likely that an amendment is considered a very strong step, one that once made cannot be easily undone, and people are reluctant to go that far.

And they're becoming more reluctant. Opposition to gay marriage is decreasing as people become more used to the idea. Part of that is a natural reluctance in this country to deny people what they want. It's the same reluctance that gives us redistributionist policies. If it benefits one group a lot, but hurts everyone else only a little, then it's not worth opposing--not for the majority of the population, and certainly not in the Congress. Especially when the accusation of bigotry is all you get for your attempts. But even more important is that prior to the existence of gay marriage, you would be opposing giving people something that did not yet have. Now that it exists in Massachusetts, this federal marriage amendment would take something away from people. If the populace is reluctant to withhold from a special interest, they're even more reluctant to take away. Waiting longer, to bring it up for another vote, will only make it harder to pass the amendment.

The harm from allowing gay marriage is subtle and long-term, the benefit is clear and immediate. If in the end the harm is more than the gain, as it seems to have been in the Netherlands, by that point it will be too late.

So is there a solution? Gay marriage may be gaining acceptance, but not so much that it can be legislatively enacted into law in any state. In every instance, it's been enacted by activist judges. While I oppose gay marriage, I would not protest as loudly if an orderly decision were made by the general populace to accept it. In that case I could believe that, at the least, it had been debated, the advantages and disadvantages weighed, and the decision made with a willingness to accept the consequences. I cannot accept it being foisted on the nation by activist judges who make their decision in a matter of weeks without significant input from all sides of the debate.

I think that Senate should have gone with the Orrin Hatch amendment, which reads:
Civil marriage shall be defined in each state by the legislature or the citizens thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.

This has a much greater chance of passing, now, and as I said, the longer we wait, the harder it will be to pass any amendment. This would have forced the issue into the state legislatures, and presumably removed the courts, state and federal, from the equation. By doing so, it would have ensured that gay marriage would be debated and enacted or denied by the will of the people.

Right now, it would take a supermajority of the people to stop gay marriage, since it seems that nothing short of a constitutional amendment, on the state or federal levels, can stop the courts from enacting it. The amendment would change the equation, so that it would take a majority (but not a supermajority) of the people to enact gay marriage. I take it as obvious that this is the way it should be, and it saddens me that it will take a Constitutional Amendment to make it so.

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