FEDERALISM AND MARRIAGE: Richard Garnett on National Review Online

[Eve says: There's also stuff about partial-birth abortion and federalism, which, to my mind, was less persuasive.]

Are conservatives hypocrites? Are they "fair weather" federalists, as Emily Bazelon recently suggested, writing in the Washington Post? More specifically, by calling for a constitutional amendment banning same-sex marriages, and endorsing a federal prohibition on partial-birth abortions, do conservative activists and legislators contradict their professed commitments to limited government and local control? ...

Now, no one has seriously suggested that Congress currently has the power to outlaw same-sex marriage. Certainly, no one believes the Supreme Court could or should undo the Massachusetts ruling. As things now stand, a decision by a state court that a state constitution requires recognition of same-sex marriages is, literally, none of the Supreme Court's business. Thus, unlike those who agitated for the creation of a right to abortion, those who support a federal marriage amendment (and, of course, not all conservatives do) are not proposing that the Supreme Court outlaw gay marriage. Instead, they are urging the people to undertake the serious and appropriately difficult task of outlawing it themselves.

...If marriage is going to be federalized, one way or another, it hardly seems hypocritical for conservatives to opt for the constitutionally prescribed method of amendment and for their own preferred definition of marriage. They are not asking judicial elites to revise the Constitution in keeping with their own ideological commitments.

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posted by Eve at 8:22 PM VOTE

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