Friday, July 16, 2004

Federal alternative to FMA

Eugene Volokh defends the constitutionality of the Defense of Marriage Act, and he doubts the Supreme Court will overturn it. The implication is that the FMA is not needed to protect states' rights. I hope he's right, and I'd give him, say, 50-50 odds of being correct.

I think the Right has made a mistake in investing so much effort in the FMA, especially given its recent procedural squashing in the Senate. Federalism is the route most likely to succeed, not to mention the route most truthful to nation's governing traditions. As I've said before, the amendment we should be trying to pass is one that makes the clear that the Tenth Amendment still applies, that states can decide matters like gay marriage for themselves. The states' rights argument is by far the one we're most likely to win on the national level. Consider that right now, if you ask most Democrat politicians about gay marriage, they'll say it's up to each state to decide, even if they're only saying this so as to dodge the question.

I'd propose a amendment text something like this: "The power of intrastate regulation of marriage and children, including unborn children, exclusively belongs to the States." (This is just a first draft, and could surely use the critical eyes of some legal scholars.) All at once, such an amendment would take some the most divisive social issues off the national table. Right now, social activists fight their biggest battles in the Senate over federal court appointments and the occasional constitutional amendment. Moving these battles back to state legislatures and ballot initiatives would be more democratic. Also, it would be more accommodating of our divided society, as there would doubtless be pro-life states, pro-choice states, states with civil unions, states without them, states with gay marriage, such that if you lose on election night, you'll still be able to vote with your feet.

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