Victorious Defeat

Commentary: OutRight

The defeat of the federal marriage amendment in the Senate in early June 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 Sen. 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. But there is a cloud behind this silver lining.

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,” ordering all the states to recognize same-sex marriages, a decision that, if it came in the near future, would trigger quick passage of a federal amendment reversing same; (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 be haunted by this amendment, of course. It will rise from its grave during national election years like a ghoul in a late-night horror movie that one repeatedly kills, only to see it rise again and stumble blindly forward. 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. For example, we heard repeatedly that there were much more important issues we needed to address, like gas prices and 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-the-gays-again tone in much of the person-on-the-street interviews seen on TV, a sentiment some senators against the amendment seemed implicitly 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 very same day the amendment lost in the Senate, 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, such as Texas, Oklahoma and Mississippi, were unlikely to recognize gay marriage or anything else gay in the foreseeable 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 many of these state amendments, adopted in a time when we didn’t know any better. That will be true at least in those states where a repeal, like the original amendment, will require a super-majority in one form or another. 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 likely 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, in many of these states, civil unions or watered-down domestic partnerships) a try long after experience in other states and countries has shown it’s a good idea.

Of the remaining 15 or so states, a few will move legislatively and judicially toward same-sex marriage, but their public-policy advances in this area will be effectively quarantined, at least initially. That’s about the rosiest realistic scenario right now for the next couple of decades.

It’s not exactly the same as having a federal amendment, which would kill gay marriage in the whole United States for perhaps half a century, but it’s the next worst thing.

So the federal marriage amendment is dead. Long live the amendment.

Dale Carpenter is a law professor. He can be reached at OutRight@metroweekly.com.

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