Balkinization

Federalism Fred?

According to this story Fred Thompson thinks that the Federal Marriage Amendment -- which he opposes-- violates federalism because it interferes with state decisions about marriage. However, he favors "an amendment to the Constitution that would prevent state judges from altering the definition of marriage without the direction of their states' legislatures."

It's hard to see why an amendment interfering the with existing relationships between state constitutions, state courts and state legislatures in all 50 states would not also be contrary to principles of federalism under a similar logic. I suspect that what is really going on here is that Thompson got blindsided by religious conservatives who objected strenuously to his failure to get behind the FMA, and so he came up with this clever way of throwing them a bone. In any case, this proposal has no greater chance of passage than the original FMA.

It is not clear how Thompson's amendment would affect situations like those in Vermont and New Jersey, where courts struck down existing laws and then asked legislatures to design remedies that would provide for same-sex marriage or civil unions. If Thompson's amendment would permit that sort of result, one suspects that religious conservatives would not like it very much at all.

Finally, Thompson's proposed amendment would "also mandate that no state be forced to recognize gay marriages from other states (such as, say, Tennessee being forced to recognize gay marriages from Massachusetts)," something already achieved by the Defense of Marriage Act. Again, this is Thompson's way of signaling to conservatives that he is opposed to extensions of gay rights without having to take a stand that would have much practical effect.

There will probably be a lot of empty posturing this election cycle on social issues. Thompson is just trying to catch up with his competitors.

Posted 5:59 PM by JB [link]

Comments:

Thompson's proposed CONSTITUTIONAL Amendment to "mandate that no state be forced to recognize gay marriages from other states" would theoretically be better than the Defense of Marriage Act because it would be a CONSTITUTIONAL Amendment -- thank you for reminding us that wouldn't stop judicial activists such as Ginsburg.

# posted by

Charles : 7:49 PM

"something already achieved by the Defense of Marriage Act."

Well, until some judge decides otherwise, which is the point of making it a constitutional amendment instead of a statute.

Full faith and credit clause in one hand, statute in the other; It's not tough for a judge who doesn't like the statute to rule it's unconstitutional, quite probably not even in bad faith. OTOH, it's really, really difficult to rule with a straight face that a constitutional amendment is "unconstitutional".

Which I think you DO understand, you're just getting carried away by your hostility towards either Thompson or the cause he's pandering a bit to.

# posted by

Brett : 7:56 AM

>>>>> he favors "an amendment to the Constitution that would prevent state judges from altering the definition of marriage without the direction of their states' legislatures." <<<<<

What "definition of marriage"? He does not say. And what if state laws do not define marriage in regard to the sexes of the partners? In that case there would be nothing to alter. And how can a legislature "direct" the courts to make particular rulings?

And what about ballot initiatives and referendums -- would this amendment cover them too? Right now the California Supreme Court is reviewing the constitutionality of a passed ballot proposition, Prop. 22, that bans gay marriage.

BTW, I am still wondering what happened to Part III of the Fairness Doctrine.

# posted by

Larry Fafarman : 12:53 PM

First, Thompson's amendment is actually a political masterstroke. Ask anyone on the religious right-- they HATE judges. (They also hate gay marriage, but not nearly as much as they hate gay marriage by JUDICIAL decision.) So Thompson gets to appeal to moderates by opposing the FMA while appealing to conservatives by bashing on judges.

That said, at some point, we are going to have to have a serious discussion about how judging works. Judges interpret texts such as constitutional provisions and statutes. These texts are often vague, leaving judges room to adopt more than one interpretation. Some interpretations are more implausible than others.

But the point is, you can't draw a sharp distinction between what the legislature did (pass the statute or constitutional provision) and what the court did (interpreting it). I can accept that gay marriage was imposed by judges in Massachussetts, via an interpretation of the state constitution. But what if there is a gay marriage statute passed, and then some clerk refuses to marry gay couples. If a judge interprets that statute and then requires the clerk to marry a gay couple, is that a judicial imposition of gay marriage or a statutory imposition?

I might add that this gets at one of the big problems with the Supreme Court's involvement in the 2000 election. The Court ruled UNANIMOUSLY in the first case that went up that the Florida Supreme Court had to apply the Florida statutes and couldn't apply any judicial interpretation doctrines. How do you do that? Statutes aren't clear. Interpretation doctrines exist to resolve ambiguities. Unless one believes courts don't have the last word (and then, who does?), you can't just say "judges can't do it, only the legislature can". About anything.

# posted by

Dilan : 10:14 PM

The ambiguity of statutes and constitutions tends to be vastly exaggerated by people who don't like what they say.

# posted by

Brett : 7:02 AM

The ambiguity of statutes and constitutions tends to be vastly exaggerated by people who don't like what they say.

That's not completely untrue. For instance, conservatives on the Supreme Court have made the Eleventh Amendment-- which has a pretty plain meaning (non-residents can't sue a state government)-- mean something completely different than what it says (RESIDENTS can't sue a state government).

But it's also a lot less true than you think it is. The main constitutional controversies involve provisions of the Constitution that are VERY vague-- due process, equal protection, freedom of speech-- and which require reference to many canons of interpretation and construction. By saying this I am NOT saying that conservative critiques of liberal decisions are necessarily wrong-- some of them I agree with-- but simply that it's very hard to really talk about unambiguous texts when one is dealing with many of the important and controversial constitutional issues of the day.

# posted by

Dilan : 3:19 PM