The Federal Marriage Amendment

Robert Bork has a nice piece in First Things defending the Federal Marriage Amendment now before the Congress which reads:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution nor the constitution of any state shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

Bork argues against other social conservatives such as George Will and Charles Krauthammer who think it unwise to amend the Constitution for this, or it appears, any reason. Bork then goes on to explore other possible wordings of an amendment and the consequences of homosexual marriage on the culture.

In some opposition to an amendment, as when Krauthammer says "for me the sanctity of the Constitution trumps everything" I see an unhealthy veneration of the Constitution that appears to have grown in the last 80 years. This "sanctity" of the Constitution has had the effect of making it increasingly unlikely that the Constitution will be amended. The irony is that over time more and more interpretations by courts have only the slightest connection with the text itself and are rather based on the whim of a few people. It is just such a situation that calls out for the process of amendment. A first step is to once again realize that the Constitution is a human document and that it's interpretation occasionally needs to be clarified by the will of the people.

And because the amendment will ultimately fail not because of its content but because of the Constitution's "sanctity" homosexual marriage in the states is a forgone conclusion. Bork outlines the undeniable scenario that will unfold:

"A homosexual couple will marry in Massachusetts, move to another state (say, Texas), and claim the status and benefits of marriage there. They will cite the Full Faith and Credit Clause of Article IV of the Constitution, which declares that states must accept the public acts of every other state. Texas will refuse recognition, relying on the federal Defense of Marriage Act (DOMA), passed in reliance on Article IV's further provision that Congress may prescribe the effect of such out-of-state acts. The couple will respond with a challenge to DOMA under the federal Due Process and Equal Protection Clauses. The Supreme Court will then uphold their challenge by finding a federal constitutional right to same-sex marriage that invalidates DOMA. The FMA would prevent this almost-certain outcome. Instead of state-by-state experimentation, we are going to have a uniform rule one way or the other: homosexual marriage everywhere or nowhere. The choice is that stark and judges are forcing us to make it."

Given the past behavior of the Supreme Court, can anyone honestly reason it will go down any other way?

My own view has been that homosexual marriage in isolation should probably be approved. After all, almost everyone agrees that some form of civil union is desirable in the interests of financial and legal fairness and once you go that far, civil marriage is largely a distinction without a difference. But once you go there (and why I don't think we should even if it's the "fair" thing to do), then marriage has lost any mooring it once had and can reasonably be conceived to mean absolutely anything (the same argument can be used against civil unions). I see no compelling reason why a young man may not "marry" an elderly woman for financial interests or a woman marry her son, or a group of people marry for financial and legal protection, or people "marrying" and divorcing the same or different people on a semi-annual basis in order to receive tax breaks. It is the symbolic link with child-rearing that is the basis for marriage as it now exists.

Bork addresses the argument that such arrangements couldn't or wouldn't happen.

"Many consider such hypotheticals ridiculous, claiming that no one would want to be in a group marriage. The fact is that some people do, and they are urging that it be accepted. There is a movement for polyamory - sexual arrangements, including marriage, among three or more persons. The outlandishness of such notions is no guarantee that they will not become serious possibilities or actualities in the not-too-distant future. Ten years ago, the idea of a marriage between two men seemed preposterous, not something we needed to concern ourselves with. With same-sex marriage a line is being crossed, and no other line to separate moral and immoral consensual sex will hold."

Conservatives such as Thomas Sowell often define the difference between themselves and liberals by saying that conservatives take seriously the law of unintended consequences. Sever the link between marriage and the family and I'm betting you'll see that law unleashed.