Not time to panic. Yet.
A (subscribers-only) article in the Weekly Standard by Dennis Teti argues that the Federal Marriage Amendment is a doomed cause.
If some political miracle allowed the FMA to pass Congress and escape to the states, a higher series of hurdles awaits. Any 13 state legislatures can defeat it by either taking no vote or rejecting it. It is theoretically possible for two percent of the American people, strategically distributed in 13 small states, to kill an amendment favored by the other 98 percent. A small, energized minority would have little trouble doing so.
The good news, according to Teti, is that the notion of marriage in the Fourteenth Amendment has enough positive content that the gay iconoclasts have a huge way to go yet before states can eviscerate marriage full stop.
But any fundamental state-imposed change would "abridge" -- weaken or limit -- the marriage privilege within the meaning of the Fourteenth Amendment. A new constitutional amendment would be needed to allow the states to redefine or abolish marriage. Short of that, the Fourteenth Amendment imposes on Congress the duty to defend the privileges of American citizens against state actions to change their meaning
The author argues for a modest, feasible, and above all enforceable protection statute:
Enacting a marriage privilege protection statute in the current Congress would give Republicans a significant advantage in next year's elections. Compared to the lengthy process of ratifying the FMA, they would have taken immediate action to protect traditional marriage. This would not stop gay marriage from being an issue in the election campaigns. Rather, it would bring the question to the forefront.
Very plausible. I wish I were as persuaded by Teti's confidence that the court will be responsive to pressures from the executive and legislative branches:
Enforceable law is Congress' authoritative means to voice its position. With an election mandate to protect the marriage privilege, Congress and the White House would give the high court incentives and an opportunity to rethink its agenda. Should the justices persist, the conflict will intensify, not go away. A constitutional crisis -- much like the New Deal crisis -- would be almost inevitable
The weakness in this reasoning is the assumption that the justices don't want to precipitate a constitutional crisis, that they're governed by the same professional inhibitions as their predecessors. Would that it were so. The fame that attends society-convulsing après moi le déluge decisions is pursued by life-term judges as hotly as rock stars pursue notoriety for their kinky recreations. The pretense of agonized judicial soul-searching is as shallow as Ellen Degeneres' charade of reticence in declaring herself a lesbian. One can all-too-easily imagine five justices eager to fire the Shot Heard Round the World, especially when the only conceivable downside is disrespectful treatment of their opinion at the Ave Maria Law School.
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Posted by: -
Nov. 19, 2003 4:13 PM ET USA
Our judges have the same respect for democracy and the same reticence to act as the Bolsheviks did when faced with a weak, indecisive Russian democracy. Unless our president and our Republican Congess grow a collective spine and find a will to act, same-sex "marriage" will be an accomplished fact in three years.