NATIONAL DEFINITION OF MARRIAGE: Justin Katz replies to Ramesh Ponnuru

...In short, even as they are blocked from mandating same-sex marriages, federal and/or state courts would have ample room to find pretext to strike down laws that explicitly forbid it. Here's the Hatch amendment, once again:

"Marriage and its benefits in each state shall be defined by the legislature or the people thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman."

Ponnuru has argued that this would still forbid anti-miscegenation laws because 1) the first sentence doesn't limit federal courts, and 2) the legislatures would not be "free to ignore other parts of the Constitution." In other words, despite the first sentence, the state legislature cannot define marriage as a union of two people of the same race, because the second sentence only limits the federal judiciary inasmuch as it cannot find that marriage must be "extended" beyond opposite-sex boundaries.

This opens an important crack in Ponnuru's response to Gallagher about what each sentence does. Most obviously, the word "extended" could be construed as allowing the Supreme Court to find that the rights can't be "restricted" to opposite-sex couples. Such reasoning might seem foolish, but as I noted in my earlier post, the Nebraska marriage amendment is already coming under attack on due process grounds--grounds that a U.S. District court thought strong enough to allow the case to go forward. And without further legislation, the courts would decide what the amendment restricts the courts from doing.

It they judge themselves only narrowly restricted, the Hatch amendment would protect the marriage precedent as passed along from common law and as inferable from various statutes and rulings, but courts might bestow the right of activists to perpetually lobby for marriage rights free of explicit discrimination in the law.

Maybe.

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posted by Eve at 12:51 PM VOTE

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