ARE HUMAN RIGHTS A STATE ISSUE?: Jonathan Rauch replies to David Blankenhorn

Thanks to David B. for his post. A prefatory remark, to avoid future misunderstanding. To some extent I'm speaking for others here without fully agreeing with them. I believe that marriage is indeed a basic human right. The Supreme Court says so in no uncertain terms. But, unlike some who favor same-sex marriage, I don't believe that defining marriage is a basic human right. I believe that the question of how to define marriage should and must be settled through a long process of political skirmishing and individual soul-searching. For the reasons I mentioned in my last post, I think the states are the proper political forum.

On to David's latest, in which he seems to move from opposing moral federalism to opposing judicial review. ...

At this stage, gay-marriage opponents often shift to arguing that marriage should be turned over to the Feds if it is not left to the legislatures of the states. In other words, state courts should be cut out of the process, even at the cost of cutting out states altogether. (That's what the Federal Marriage Amendment would do.) In order to sustain this position, some gay-marriage opponents--I do not put David B. in this group, I merely note the common phenomenon--embark on a vigorous campaign of court-bashing. ...

David B. says two interesting things. One is that "the U.S. Supreme Court suddenly imposing same-sex marriage on the entire country" is "not even a remote possibility." Why, then, a federal amendment banning same-sex marriage? The answer, of course, is to prevent any state from adopting same-sex marriage, and to ensure that no gay couples can ever marry anywhere in America. The people of Massachusetts may affirm same-sex marriage in 2006 by statewide plebescite. FMA proponents would overrule them. That's a very peculiar way to defend popular sovereignty. If anyone in this debate is guilty of tactical cynicism, I think it would have to be those FMA supporters who insist they are only trying to stop "activist judges." ...

For same-sex marriage proponents, the mistake hasn't been going to the courts, it has been going only to the courts. Another unfortunate holdover of civil-rights-era thinking.

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posted by Eve at 6:15 PM VOTE

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