The defeat of the federal marriage amendment in the Senate on Wednesday was welcome, if entirely expected. It was a nice surprise to see the amendment fall short of 50 votes even on a procedural motion (its total would have been lower had it come up for a substantive vote); to have seven Republicans vote against it; to hear even southern conservative Senator John Warner (R-VA) say he thought it went too far; and to realize that this probably set its high-water mark in the Senate.
The federal amendment, already on life-support, is dead for the foreseeable future, barring one of three very unlikely events: (1) a Supreme Court "victory" for gay marriage; (2) unprecedented and overwhelming gains for the anti-gay-marriage movement in the next few national election cycles; or (3) a proposal for a much narrower amendment that would, for example, simply strip courts of jurisdiction over the issue. Even a narrower amendment would probably fail, but things would get a lot more interesting.
We'll continue to see this amendment, of course. It will rise from its grave every two years like a ghoul in a late-night horror movie that one repeatedly kills, only to see it stumble blindly forward again (as Justice Scalia once memorably said about the Lemon test for religious establishment). It's the living dead.
All of this is cause for some celebration. But it is a muted celebration, the way one celebrates an essentially defensive victory. The debate in the Senate was a defeat for the amendment but it was not a win for gay marriage, which hardly any Senator even hinted at supporting. If we had an up-or-down vote on gay marriage in the Senate, it would lose 98-2, or thereabouts. And while many of the arguments directed at the amendment were quite good (emphasizing federalism, the overstated threat of judicial activism, and the overbreadth of the amendment), some of the arguments against the amendment were, shall we say, deflating. So, for example, we heard repeatedly that there were much more important issues we needed to address, like gas prices and our delicate relations with the Principality of Liechtenstein. I guess I have to agree with that in one sense. Any proposal is more important than one that should never have seen the light of day. Still, there was something baleful about cheering on people who were suggesting that anything related to the question of whether gays could marry was wasting our precious time. There was that not-those-people-again tone in much of the person-on-the-street interviews seen on TV, a sentiment some Senators against the amendment seemed to be exploiting. Even my beloved federalism argument can sound, in the wrong mouth, like "the states should be allowed to do this godawful thing if they want to." Forgive me for not finding much inspiration in that.
Then came the news, the same day, that Alabama had become the 19th state to ban gay marriage in its state constitution, which I suppose will stop dead in their tracks all those Alabama state court judges who've been seduced by pro-homosexual propaganda. Alabama and most of the other states that have passed constitutional gay-marriage bans (e.g., Texas, Oklahoma, and Mississippi) were unlikely to recognize gay marriage or anything else gay in the near future anyway, whether by legislative or judicial action, so not much is immediately lost. But I get the sense that long after the rational debate over whether gay marriage harms anything has been resoundingly answered "no," we're going to be stuck with these state amendments, adopted in a time when we didn't know any better. More precisely, "we" won't be stuck with these state constitutional amendments; gay families unfortunate enough to live in those places, with little means of escape, will be stuck with them.
With a federal amendment now effectively off the table, my guess is the anti-gay-marriage movement will redouble its efforts in the remaining dozen or so states that seem likeliest to pass such measures. The result, after a few more election cycles, will be a nation where about 35 of 50 states will be unable to give gay marriage (or civil unions or watered-down domestic partnerships) a try long after legislative and popular majorities in those states think it's a good idea. It's not exactly the same as having a federal amendment, but it's the next worst thing.
Related Posts (on one page):
- The amendment is dead, long live the amendment:
- Gays, Federalism, and Minority Rights:
- Video of panel on marriage amendment now available online:
- The New York Times and the federal marriage amendment:
- Bush to retract support for a federal marriage amendment in Monday speech, news report says:
- Is the Federal Marriage Amendment Consistent with Federalism and Democratic Values?
- Another prominent conservative against a federal marriage amendment:
- Is Marriage a Federal Issue?
- Against a constitutional amendment banning gay marriage: