FMA IS A BAD COMPROMISE: Jacob T. Levy in the New Republic

Many of the conservative supporters of the Federal Marriage Amendment (FMA) argue that their efforts are intended to limit judicial overreach of the sort they perceive in Massachusetts' Goodridge decision. They suggest that the FMA bans gay marriage altogether, but bans civil unions only if they're created by state or federal judges--suggesting that legislatively created civil unions would be acceptable. As Ramesh Ponnuru
recently wrote, "[T]he amendment would not bar a state legislature from enacting civil unions, but only block any future replays of Vermont, in which a court essentially ordered a legislature to enact them." This is of a piece with a longstanding argument on the right that social conservative positions can best be presented as defenses of democratic decision-making against an imperial, culturally-left judiciary. And it seems to underlie the Bush administration's political strategy of embracing a marriage
amendment while fudging on the issue of civil unions.

As written, though, the FMA would make it impossible to create the type of civil unions FMA boosters like Ponnuru suggest they're open to. More broadly, it's unlikely that any amendment preventing courts from creating civil unions would make it possible for legislatures to do the same.

Worse, not only would the FMA deny state legislatures the authority proponents claim it would leave intact; it would also constitute the kind of unprecedented assault on state autonomy conservatives reject in almost every other circumstance.

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posted by Eve at 3:49 AM VOTE

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