Wednesday, November 26, 2003

terms and changing realities

The Infidel writes on marriage in an absorbing post. It says in part:

I object to the view of humans as baby factories. Humans have a responsibility to a larger ecosystem and to the possibilities inherent in our own genome not to waste valuable resources reproducing our own flaws. So, I don't share some traditionalists' fears of a devaluation of the "marriage-as-procreation" paradigm.

I also disagree with the so-called liberal view of "marriage-as-benefit" school. Maggie Gallagher, in "Massachusetts vs. Marriage" (via Matthew [Y]glesias) protests too much, but some folk are too hard-nosed. Gallagher also rants hyberbolically in her characterization of this trend, because marriage reform, a la Goodridge, is just one step in a possible redefinition of many legal relationships, but one which is necessary before any other. Gallagher paints her opponents as very greedy reformers and ic[o]noclasts, but I'm sure only the trial lawyers are so rapaciously committed.

Chief Justice Marshall's opinion in Goodridge about marriage-as-committment is conclusory, as is the dissenting view of marriage-as-procreation. Short of a few good research grants, the answer to what marriage is, belongs to sages. Legislators can only rely on their own prejudices and rationalizations to attempt to convince the hordes of undecided voters about the most prudent legislation. In the end, Americans need to consider how narrow a view of marriage they are willing to accept without depriving themselves of the opportunity to retain control over their own lives.

It's a fascinating and subtle position; I like it. It also seems consistent with my mantra that "marriage" is a term describing a changing reality.

You already know my own stance is to view this as a justice issue, which inevitably gives this discussion an ethical (and possibly religious, depending on who you are) tinge. The only "benefit" I'm concerned with in this case is the according of basic civil rights; the specific legal benefits that may arise from legalized gay marriage (taxes, etc.) aren't my primary concern here, though they're obviously important, and certainly related.

The Maximum Leader's link to AnalPhilosopher has led me over to Dr. Burgess-Jackson's blog several times. Recently, Dr. Burgess-Jackson wrote to contradict, somewhat, Andrew Sullivan's advocacy of a federalist approach to the gay marriage issue. To wit:

I keep hearing, from the likes of Andrew Sullivan, that federalism--the doctrine of states' rights--is incompatible with a constitutional amendment that prohibits homosexual marriage. It is said that a true/good/real federalist would allow states to do as they please with respect to homosexual marriage. By supporting a constitutional amendment that prohibits such marriages, however, one is choosing not to allow states to do as they please.

Is this right? Does federalism entail opposition to a constitutional amendment? Yes and no. It entails opposition to the constitutional amendment described (one that prohibits homosexual marriage), but it does not entail opposition to all amendments. Indeed, as I shall argue, it requires a particular amendment.

The problem, from a federalist point of view, is that Article IV, Section 1 of the United States Constitution requires that "Full Faith and Credit . . . be given in each State to the public Acts, Records, and judicial Proceedings of every other State." Suppose Massachusetts allows homosexuals to marry on the same terms as heterosexuals. If the effects of such a decision could be confined to Massachusetts, a federalist would have no problem with it. But the Full Faith and Credit Clause will not allow it to be confined to Massachusetts. In time (probably right away), a homosexual couple married in Massachusetts will move to another state (say, Texas) and demand recognition by that state. (Or: A Texas couple will go to Massachusetts to be married, the way heterosexual couples have traditionally gone to Las Vegas to be married.) Either way, the matter will end up in court. The court, applying the Full Faith and Credit Clause, will rule that the couple is married in Texas as well as in Massachusetts. If you're married anywhere, you're married everywhere.

So, regarding the Defense of Marriage Act (DOMA):

The problem with DOMA is that it runs afoul of the Full Faith and Credit Clause of the Constitution, which is supreme. Neither DOMA nor the second state's (e.g., Texas's) law restricting marriage to heterosexuals would stand in the way of a ruling to the effect that the Constitution requires nationwide recognition of a marriage that is lawful in any state. The problem, as the federalist sees it, is the Full Faith and Credit Clause. It effectively nationalizes marriage law. It prevents states from legislating as they see fit on the question of homosexual marriage.

[QUESTION: If the FFCC is "supreme," and "prevents" states from enjoying the full benefits of the federalist ideal, how did DOMA get on the books? Surely someone must have considered this question before Burgess-Jackson. I suspect the professor may be glossing over the interpretability of law, and he wouldn't be the first to argue from an unjustifiably rigid (even positivist) stance (i.e., a flat declaration like, "This law logically cancels out that law, period, no interpretation possible"-- despite the uncomfortable fact that DOMA is sitting there, staring you in the face, making you wonder how it got there).]

Burgess-Jackson goes on, and it's a great post, but I want to stop here and mull over why Sullivan would even advocate a federalist position. Why not propose a constitutional amendment that makes irrelevant the issue of sexual orientation in marriage?

There are a couple reasons why I propose this (and I doubt I'm the first to do so). First, Sullivan may have been a little too convincing when he argued that we're talking about basic civil rights. As I mused a while back:

Sullivan's argument is hard for me to ignore. He does make me wonder, though, why a basic civil right, something of even greater magnitude than the right to vote, should be sanctioned only at the state level and not the federal level. I'll chalk this up to Sullivan's own conservatism and maybe even a willingness to compromise (he does note, after all, that states already regulate marriage), but if marriage is as fundamental as he is insisting, why not aggressively pursue a constitutional amendment that enshrines marriage as something available to all?

Burgess-Jackson's post has brought me back to this question, because his alternative is just scary:

But federalists are disingenuous if they say that the only solution is a constitutional amendment prohibiting homosexual marriage. There is another solution that stops short of that while keeping faith with federalism--namely, a constitutional amendment that nullifies the Full Faith and Credit Clause with respect to homosexual marriage. The amendment would decree that the Full Faith and Credit Clause not be construed to apply to homosexual marriage.

This raises red flags, to me, partly because of the potential harm it does to the Constitution, but also because of the ill it bodes for a civil rights issue. Burgess-Jackson, however, spins it this way:

The solution I'm proposing is federalist in nature but does not take a position on the substance of the matter. It is federalist because it both (1) allows states to allow homosexual marriage and (2) allows states to disallow homosexual marriage. A constitutional amendment that bans homosexual marriage would not allow states (such as Massachusetts) to allow homosexual marriage. No constitutional amendment at all--the current situation--would not allow states (such as Texas) to disallow homosexual marriage (assuming, as seems plausible, that the Full Faith and Credit Clause would be interpreted by courts to require every state to recognize a marriage that is lawful in any state).

And there's my question: is that really a plausible assumption? I imagine DOMA's still on the books, and it's been seven years. Why start deconstructing the FFCC now? Why only with regard to homosexual marriage? These are obvious questions.

What makes Burgess-Jackson's proposal scary is that, while it seems reasonable in the abstract (as Someone Who Must Not Be Named might say in reference to certain liberal positions), its real-world implications are more sinister. So let's get real: how many Texas courts will rule in favor of honoring a homosexual union with legal benefits?

I put that out there as a slippery-slope argument for those who respect such arguments, because this question is relevant to more than just Texas. Most states, in some form or other, affirm that marriage is properly between a man and a woman. My concern, though, is that Burgess-Jackson's proposal goes against the tenor of previous socially progressive constitutional amendments.

So, scariness aside, my second (and principal) reason for proposing the "makes-irrelevant" style of amendment is that it would be consistent with other civil rights-related amendments already in the Constitution.

Amendment XIV of the US Constitution says:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Notice the approach taken in Section 1. Factor X (in this case, "...race, color, or previous conidition of servitude") is being declared a nonissue vis-à-vis a crucial civil right.

Then look at Amendment XIX:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate leglislation.

Notice it's the same approach: making something into a nonissue. In this case, it's sex. So for the crucial civil right to vote, sex is a nonissue.

Along comes Amendment XXVI:

Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

Same approach, but with one crucial difference: age is a nonissue if you're 18 and older. After that, it doesn't matter whether you're 18 or 180.

So again, here's what I wrote before:

It almost seems that Sullivan should be arguing for a constitutional amendment making sexual orientation a non-issue for marriage, if he maintains along with Arendt that marriage is a basic right prior even to voting.

Unlike last time, I'm not noting this merely to critique Sullivan. Maybe his eventual goal is to see just such an amendment-- I wouldn't put it past him. Maybe he's realistic to think that it's through baby-step debates like these that the country will soften up and finally be ready to install, by legislative fiat, the basic civil right for which millions are campaigning.

No, this time, I'm noting Sullivan's inconsistency in order to announce that this is where I diverge. I think Sullivan needs to go balls-out and say what he means. He isn't, so I will. The amendments I quoted above explicitly deny to states (and the US govt!) the right to determine a civil rights issue on their own-- i.e., each of the above amendments guarantees constitutional protection of a certain issue (in this case, the right to vote), and it's done largely through the negative approach of making factors X, Y, and Z into nonissues. The US government, and the particular States, can no longer make factors XYZ into issues.

Burgess-Jackson's proposal doesn't do this. Instead, it highlights homosexual marriage and pointedly makes it an issue, not a nonissue, while scarily turning the FFCC into a nonissue in a particular area. This doesn't seem consistent with the spirit of previous constitutional amendments related to civil rights. Maybe Burgess-Jackson's proposal is as neutral as he's suggesting ("...does not take a position on the substance of the matter"), but my suspicion is that it isn't.

Was it a nasty leftist move toward an oppressive nanny state to make voting a constitutionally protected (and, for the most part, demographically unrestricted) civil right? I think not. The only people grumbling about minority and female suffrage probably have swastikas hanging in their basements.

In the meantime, I don't disagree with Burgess-Jackson's conclusion:

...federalists should not present federalism as if it takes a position on the substance of the debate over homosexual marriage. It does not. It simply requires that states be free to legislate in this area: free, that is, to allow or disallow homosexual marriage.

Burgess-Jackson is pointing out that nonfederalists like Sullivan are using federalism to forward an agenda. I'm only doing my duty in noting that Burgess-Jackson is hiding his own agenda under the cloak of reason (heh) and "neutrality." He knows full well what would happen, in practical terms, if the FFCC were made irrelevant to the issue of gay marriage. His proposal is to deconstruct part of the Constitution in order to allow states to decide for themselves on what is, in my view, a matter of basic civil rights.

So I'm picking up the flag where Sullivan's dropped it on the battlefield. Gay marriage advocates need to acknowledge the full implications of painting this as a civil rights issue and redirect their efforts accordingly. Since Sullivan despises the half-measure of "civil unions," I think he should also despise the half-measure of arguing his case via the federalist approach. If Burgess-Jackson has convinced me of anything in his post, it's that he is being more federalist than Sullivan, and federalism, in the end, won't help Sullivan's cause.

No comments: