FMA and religion

Volokh, Eugene VOLOKH at
Wed Feb 25 16:53:56 PST 2004

	(A)  I don't know just how the supporters of the FMA break down.  I
think there are lots of nonreligious conservatives who just don't like
radical change in social institutions such as marriage, and lots of
religious conservatives whose views are shaped as much by their
methodological conservatism (whether or not they've ever heard of Edmund
Burke) as by their religiosity.  But who can tell for sure?  In any event, I
don't think that the fraction of religious-reasons vs. secular-reasons
supporters is relevant generally, or to the Establishment Clause question in
particular.  It wasn't relevant as to the Thirteenth Amendment, nor is it
relevant as to this one.

	(B)  I agree with Sandy that "take it away from the courts" people
should frame any proposed amendment much more narrowly.  I have faulted them
for not doing so.  But that relates to *framers* of the FMA, not its
*supporters*.  Lots of people don't think about how they'd draft an
amendment better -- not even now, when the text isn't yet settled, and
surely not later.  They ask themselves:  "Would I rather keep the judicial
decisions striking down gay marriage, or reverse them, even given that the
reversal will at least theoretically block the democratic process in some
states?"  My sense is that many people who think courts are going too far
here may well choose the "Reverse them" option, even if the proposal is
imperfect for all the reasons Sandy mentions.

	So I actually agree with many of Sandy's substantive criticisms, and
many of the others' substantive criticisms.  I've submitted letters to
Congress criticizing the FMA as currently drafted, and I've publicly
criticized it in other ways.  But the FMA can't be simply dismissed, either
as a matter of the Establishment Clause, or Establishment Clause values, as
improper because it's supported by some (or even most) of its supporters for
religious reasons.


Sandy Levinson writes:

> I think that Eugene is being somewhat disingenuous in his 
> description of secularists who support the amendment.  He writes:
>  I know people who have no religious objections to 
> homosexuality, but who think that (1) it's important not to 
> tamper with essential aspects of fundamental institutions 
> like marriage, (2) the democratic process should take this 
> matter away from  the courts, or something else.
> No doubt there are some people who fit category one, though I 
> suspect they are a trivial minority of the people who support 
> the amendment.  The overwhelming majority of supporters, I'm 
> quite confident, are religious and want to write a particular 
> theological notion of marriage into the Constitution.  The 
> presence of a few self-described secularists is nothing more 
> than a fig-leaf.  (This is, I think, quite different from 
> abortion, where one can derive anti-abortion views from the 
> most secular of premises.)  And, incidentally, did these 
> secular Burkeans propose similar constitutional amendments  
> when state legislatures started passing no-fault divorce 
> laws, which had far greater consequences on our "fundamental 
> institution" of marriage than gay and lesbian marriage would have.  
> Argument 2 is simply and utterly illogical.  Let's assume, 
> for sake of argument, that one doesn't trust courts on this 
> issue.  (I don't trust courts on a lot of issues, who among 
> us *is* a big fan of any and all judicial assertions of 
> power?)  But if one is mistrustful of courts, the obvious 
> solution is to say (something like):  "Any changes in what 
> counts as marriage shall be made by state legislatures.  No 
> judicial construction of a state constitution will be 
> recognized in the absence of supportive legislation."  The 
> state constitutions, in this respect, would become like the 
> US view of treaties, non-self-enforcing and in need of 
> implementing legislation.  That would, of course, allow the 
> possibility, quite inevitable given demographics, that 
> within, say, 10 years, several state legislatures that have 
> already voluntarily embraced civil unions--see, e.g., New 
> Jersey--will go the next step and recognize that there's no 
> good reason to bar gays and lesbians from purchasing marriage 
> licenses, especially if one wants to reinforce the 
> essentially conservative view that "marriage" is a good thing 
> (as opposed to living together out of wedlock--this is, after 
> all, why a conservative like Andrew Sullivan thinks it's so 
> important to legalize gay and lesbian marriage).  So the 
> supporters of the amendment are being completely obfuscatory 
> in their professed desire to "send a message" to overreaching 
> courts.  What they want to do is to write their views of 
> marriage into the Constitution in a way that prevents local 
> diversity and other values that many conservatives purport to support.
> sandy

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