Things To Act
Sunday, July 11, 2004
Notes on the FMA
The House Version, with Rep. Musgrave (R-CO) as the most prominent sponsor, is being held pending Senate action, though indications point to forcing a roll-call vote at some point before the election. The resolution has 126 cosponsors (290 votes are needed to meet the 2/3 threshold). Of Utah's representatives, only Rep. Cannon (R, UT-3) is listed as cosponsoring. Neither Matheson (D, UT-2) nor Bishop (R, UT-1) seems to have anything about the FMA, one way or the other, on either his official or his campaign website. However, I believe Matheson has said he would vote in favor (he evidently drew a protest at the state party convention over the issue). The complete list of cosponsors is available by clicking on the link above.

The House version, however, is unlikely to persist in its current form, as it has the since-amended state law provision:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:

`Article --

`SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.'.

The Senate version, as most recently introduced, carries neither bolded provision above [incidentally, SJR 40 seems to have superseded SJR 30]:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:



`This Article may be cited as the `Federal Marriage Amendment'.


`Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.'.
The other change, removing the recent traditional seven-year expiration date, is interesting. The most prominent recent unsuccessful Constitutional amendment, the ERA, failed to be ratified in seven years, and then failed ratification in an unprecedented three-year extension of the deadline. On the other hand, the most recent successful amendment, the XXVIIth, was originally proposed with the Bill of Rights, and languished without enough states' ratifications for 200 years before the magic 3/4 was reached.

An interesting twist that could come up is the question of whether a state can 'unratify' an amendment. A couple of states tried to rescind their ratifications of ERA, though the constitutionality of this move was never tested. Some legal scholars argue that such a move is impermissible, and that once a state has ratified, it cannot rescind. However, my suspicion is that at least some who argued for this position were strongly in favor of the ERA, and likely strongly oppose the FMA; it would be interesting to see if any change their minds if the FMA escapes Congress. Nevertheless, if we take the precedent of the 27th amendment establishing an unlimited ratification period, and the concept of once-ratified, no rescinding, the stage could be set for the FMA to be a perpetual issue in American politics, unless and until ratification is reached. Whether or not this is a good thing is open to debate.

The possibility that the sponsors of the FMA want an unlimited ratification period would answer one question I was wondering about, which involves the method of ratification. Under the Constitution, two methods of ratification exist--3/4 of state legislatures ratifying under a simple majority vote, and 3/4 of the states ratifying in special ratifying conventions called for the purpose [this latter method is less familiar, and has only been used once, with the XXIth Amendment's repeal of Prohibition]. Given that public opinion tends to slightly favor the amendment, and given the ease of blocking legislation in state legislatures, I was wondering why the sponsors chose not to seek the ratifying convention route, as special ratifying conventions called for one purpose only would presumably mirror state opinion better than legislatures. The fact that legislatures are repeat players in the process (even legislatures that meet every other year would have three chances to ratify the amendment in the standard seven-year time period) could explain the decision. Proponents may prefer a more drawn-out fight for whatever reason, be it fear of a quick decisive loss or a desire to keep the issue alive through several election cycles.

Moving on to the content of the FMA: The first statement would codify the definition of marriage to be only "the union of a man and a woman" in any jurisdiction in the U.S. The second statement would prevent judicial imposition of SSM or civil unions relying on either state or the federal constitution (and since state constitutions tend to contain broad clauses about equal protection, etc, the potential for mischief by activist judges is genuine). The second statement does appear to bar civil unions in any state constitution, but should not bar statutory enactment of such (as the earlier version of the FMA could be construed to do). If an activist judiciary tried to impose civil unions by statute, however, it would be comparatively simple for the Legislature (or a citizens' initiative) to amend and clarify the statute in question.

The second sentence, which intends to restore democratic majoritarianism to process of deciding in which direction family law ought to evolve in response to increasing societal tolerance of same-sex relations, seems less controversial than the first, which would codify a single definition of marriage into the Constitution. Senator Hatch proposed an amendment focusing on the concepts in the second sentence--restraining activist judges--but social conservative groups (and the now the Church) favored establishing a national definition.

I am aware of several broad lines of argument against the first sentence.

*"A national definition violates federalism." The FMA would prevent the states that want to from experimenting with SSM. This is the most serious argument against the FMA, in my opinion. While it's true that those in favor of SSM largely also seek to create a national definition (imposed by the courts), one could make a principled argument that as long as DOMA is upheld, states should be free to experiment if they want. I don't know that a nation half SSM and half not is quite as serious as a nation half free and half slave, but the Church seems to think it's a bad thing regardless. I don't know that I'm terribly impressed by some Republican hedging on this issue though--my inclination is that they should bite the bullet and argue more directly that it's a justifiable expansion of national power, rather than trying to paint themselves as pure federalists (and it's not as if the national media that accuses them of hypocritical federalism is itself a model of ideological purity, even on this issue, in which liberal born-again federalists are popping up left and lefter).

*"A national definition in the Constitution is bad because the people might change their minds later." This argument lacks moral seriousness when put forward by people trying to impose a definition undemocratically via judicial fiat. If the broad national consensus did change, either the legal structure would find a way to cope or another amendment would be passed. It's not as if people lie awake at night distressed over the fact that we have the 18th and 21st amendments cluttering up the beauty of an otherwise pristine Constitution.

*"A national definition is less likely to pass." Pragmatic, for those who care for such things. I personally thought a laissez-faire federalist amendment had a better shot, but what do I know? In any event, if the Church is in favor of a federal definition, then the chances of passage are less relevant than making a good try.

*"A national definition writes discrimination into the Constitution." This argument is quite silly on several levels. It is literally true--discrimination, in the technical sense, involves making distinctions, and the FMA does create legal distinctions between permissible types of marriage and impermissible types. However, every amendment to the Constitution, along with the original text itself, is technically discriminatory (whether against third-term presidents, untrustworthy Congressmen, or even the American people themselves). People who make this argument take for granted that the structure of marriage law as currently enacted is discriminatory in a bad way, as it not only discriminates against minors who want to marry or incestuous couples, but it also prevents same-sex marriages. However, very few of those making the argument that marriage as it currently exists discriminates badly are attempting to challenge current marriage statutes in the various state legislatures. Their use of nondemocratic judicial forums to force change is both cynical and somewhat effective, though it still may backfire spectacularly. A corollary to this argument is that 'past amendments have always expanded rights.' This argument is both untrue (stripping standing to protect state governments and blocking voters from voting for popular presidents unquestionably limit rights) and absurd, if carried to logical extremes. However one defines rights, one cannot endlessly expand rights without the framework of government breaking down--freedom to do anything is anarchy. Expanding rights is important, but only if rights need to be expanded, and contracting rights can be equally important (the proposed balanced budget amendment, for instance, would limit the rights of the American people to mortgage their (and their children's) future). In any event, expansion or contraction of rights should be argued on the merits, not with reference to some mystical notion of the primacy of expanding rights.

*"The proposed national definition would exclude polygamy, which is hypocritical for LDS." Surprisingly, this line of argument has popped up in a few places in the Bloggernacle recently. I'm not convinced. On the first point, the FMA defines a marriage as the union of one man and one woman, but this is not necessarily incompatible with polygamy. My polygamous multiple-great grandfather did not have a marriage with two wives, he had two marriages, each of which was the union of one man and one woman. Under the FMA, state laws could continue to bar multiple simultaneous marriages or not. In any event, the Church is extremely unlikely to return to the practice of polygamy anytime soon--arguing that the Church ought to be paving the way for its legal return seems rather silly. The current legal structure is incompatible with polygamy in any event--the FMA does little to change that political reality, as it exists as a cultural sentiment independent of laws or amendments.

*"But it's hypocritical for LDS to punish others for practicing alternative forms of marriage." This is the follow-up corollary, whether delivered in anger or pious self-righteousness to try to score political points. Nevertheless, numerous differences exist between the 19th-century polygamy persecutions and the 21st-century SSM arguments, including but not limited to scriptural justification for polygamy, geographic isolation (and practical independence) of polygamous communities, ex post facto criminalization of polygamy, punishment of belief versus punishment of action, expected societal acceptance, etc. Federal persecution of polygamous families who had already been driven out of the U.S. and largely wanted to be left alone is hardly the same as resisting an active movement to force U.S. communities to extend special legal privileges to same-sex couples. At the end of the day, the polygamous LDS families largely wanted to be left alone to practice their religion, while same-sex couples today are trying to force society to accept their beliefs, independent of legal rights (which can be granted by civil unions, if actually needed to ensure fairness).

*"The FMA is playing politics with the Constitution." While some in both camps are probably motivated by electoral gain, the general cry of "unfair wedge issue" strikes me as silly. Activists playing politics with the judiciary is just as serious, if not more so, and now that the issue is on the agenda, politicians shouldn't complain that they might be forced to take a position and vote on it. If opponents really think the FMA is deeply misguided on the merits, then they either A) don't trust the American public to notice this fact, or B) should be salivating at the prospect of electoral gains in the wake of the inevitable pro-FMA implosion.

In any event, my initial reluctance about the FMA stemmed largely from the federalist and pragmatic rationales--while I agreed that some action seemed to be necessary to prevent judicial usurpation of the democratic process, I wasn't sure it was wise to pursue a federal marriage definition, especially given pragmatic concerns. However, as the Church evidently does believe it necessary to pursue a federal definition, the FMA seems as good an option as any (particularly given that the failure of the FMA would likely be a death knell for any pro-marriage amendment).

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