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Friday, May 13, 2005

The real problem with the FMA

The real problem with the Federal Marriage Amendment (FMA) is that it is countermajoritarian.  That's right, you heard me: a proposed constitutional amendment that may garner the support of a supermajority is actually countermajoritarian in the long run.

The proposed FMA state:

“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 marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.”

This does a number of things.  First, it limits the power of state and federal courts to define constitutions to require recognition of same-sex marriage.  Second, it may limit the power of courts to do what the Vermont Supreme Court did in require the recognition of civil unions.

If that was all the FMA said, it would not be odious.  All it would do is leave the definition of marriage to the elected branches of government.  We may not support that, but it is hard to argue that it is unprincipled as a matter of political theory.

However, take a look again at the very first sentence of the FMA. 

“Marriage in the United States shall consist only of the union of a man and a woman."

This language prohibits a legislature from adopting same-sex marriage!  By garnering a supermajority today, conservatives prevent simple majorities from choosing to recognize same-sex marriage tomorrow.  If that's not countermajoritarian, then I don't know what is.

The conservatives' strongest rhetorical weapon right now is that courts that require recognition of same-sex marriage do so against the will of the people.  If they really were concerned with the will of the people, then they would propose an FMA that merely states that the definition of marriage is left to legislatures and not courts.

This is why the Constitution should be reserved almost exclusively for procedural safeguards, rather than adopt substantive political positions that may well become minority positions over time.

Posted by Hillel Levin on May 13, 2005 at 10:19 AM | Permalink


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Tracked on May 13, 2005 7:33:33 PM



We've argued before, and I know how agile you can be, but I think you've got the worse argument here. You can get 100% of the Goodrich-prevention effect without the first sentence.

The only effect of the first sentence is to add your own limitations on the choices of the people.

That seems to be something your comfortable doing. But you must be aware that the FMA is being packaged as a Goodrich-prevention measure, when it in fact reaches quite a bit further.

Posted by: Kaimi | May 19, 2005 3:09:17 PM

I believe we are speaking past each other on the substance/procedure question; and I futher believe that this question is peripheral to the main issue. So I will just note our disagreement and go from there.

As for the main issue, the merits of the proposed FMA, I think I've said everything I have to say, but I will add some final words to sum up. (And feel free to have the last word, of course.)

Amending the Constitution is, in the short term, an exercise in democracy in the sense that the proposed amendment is put to a vote that requires the support of the people--a lot of the people, in fact.

However, in the long term, amending the Constitution is antidemocratic because it prohibits majorities from enacting their will. This is true of ANY amendment to the Constitution, as you rightly point out. Which is precisely why we ought to think long and hard about what we put in there.

The repeated complaint from the right is that advocates of same-sex marriage who go through the courts are using antidemocratic means. That's a strong charge, and it is one that is based (theoretically) on high principle rather than crass politics. And for that reason, it is a charge worth considering strongly and grappling with, no matter where one stands on the substantive issue.

Yet when these same people support the proposed FMA, they are making a move that is, in the long run, antidemocratic. They haven't explained why heterosexual marriage is more like the abolition of slavery such that it must be constitutionalized; and less like any other political question that can be left to simple majorities. Once again, if the charge truly is that judges are undermining the will of political majorities, then the first sentence of the proposed FMA could be dropped.

So long as they continue to crow about subverting majorities and yet simultaneously support the proposed FMA, they are throwing stones from the living rooms of their glass houses.

Posted by: amosanon1 | May 19, 2005 2:40:00 PM


The religion clauses are *completely* substantive, there's nothing procedural about them at all.

You ask "what happens when 51% of a state's population, or 51% of the national electorate SUPPORTS same-sex marriage?", it's the same thing that happens when 51% of a state wants to elect a 27-year-old Senator, or establish a state religion, or impose state duties on textile goods from China: they have to get a super-majority.

As for the role of judges, many people are rightfully concerned that judges will impose same-sex marriage nationwide, a la Goodrich. The reason FMA proponents highlight this is to remind people there's reason to act now, even though courts haven't acted yet. If one side admits to using the courts to get their way, it only makes sense for the other side to look for ways to prevent that from happening.

Posted by: Matt Evans | May 19, 2005 2:07:48 PM

Matt, once again I think you confuse substantive with procedural protections. The problem that the establishment clause was designed to address was a procedural one rather than a substantive one. The problem was that European countries had religious governments that prevented the non-religious from assuming power. The Establishment Clause (like freedom of speech, the right to vote, the second amendment, and so forth) are all designed to maximize political participation and to break down the barriers that stood in the way of such participation. Do they have substantive elements? Of course. But the core is the preservation of democracy. And that's what any Constitution should be about.

I agree with you that a majority "can" stifle the minority. I am asking two different questions:

1. SHOULD the majority do so on an issue like same-sex marriage? Today, there may be a 65% majority throughout the country that opposes same-sex marriage. I'm okay with respecting that majority (and hence taking the issue away from judges), particularly since NOT respecting the majority may well be counterproductive in the long run. But what happens tomorrow when 51% of a state's population, or 51% of the national electorate SUPPORTS same-sex marriage? Why should they be bound by today's majority? All you have done is argue (a) that the majority today can do it--which is obvious; and (b) that majorities in the past have done it to prohibit torture and slavery. That, of course, doesn't address the actual issue that I raise.

2. Assuming that the majority should take this step, it should be honest about it, right? It should stop saying that this is about judges. If it were just about judges, then the first sentence would be eliminated. Instead, the majority should just come out and say "We don't care about tomorrow's majority. All we care about is that we oppose same-sex marriage, and we'll do whatever we can under the system to prevent it for ever after." Which is exactly what those who use the courts in order to gain recognition of same-sex marriage through the courts are doing. The main difference is that the latter group is honest about it. They will freely tell you that they don't care what 51% or 65% of Americans think, today or tomorrow.

Posted by: amosanon1 | May 19, 2005 1:25:59 PM


I thought this paragraph from Volokh's analysis of the Nebraska marriage amendment was germane to our discussion.

"Moreover, it's the nature of a democracy that the majority blocks 'changes opposed by the majority.' It may not block advocacy for such changes; but it can surely block such changes. And if the majority sufficiently opposes certain changes, it can block them at the state constitutional level rather than just at a state statutory level, or at a state statutory level rather than the local level. The whole point of state constitutions is for the statewide majority to prevent its representatives in the legislature (or voters or legislators in the state's political subunits) from enacting changes opposed by that statewide majority."

If you just replace Volokh's references to "state" with "United State," it applies perfectly to these circumstances.

Importantly, I think your claim that the Constitution shouldn't include substantive provisions is misguided.

Are you genuinely upset that 18th century Americans forbade the establishment of a national religion, erecting a high barrier for later generations? The relationship between church and state was a hot political topic then, too. It's hard for me to believe that your "real problem with the First Amendment," is that it prevents a simple majority from establishing a national religion, or that those who want a national religion are unfairly disadvantaged because they must build a super-majority. Nor do I suspect you're upset that the First Amendment has been incorporated against the states, preventing state legislatures from establishing state religions.

Posted by: Matt Evans | May 19, 2005 12:52:28 PM

The Second Amendment is from the same procedurally protective impulses as the first amendment.
The 8th amendment is probably substantive
The 13th amendment is centrally procedural; it stands for the proposition that the majority cannot subjugate the minority such that the minority cannot wield any political power; of course, it is also substantive, but I think the substance protecting slavery after what the country had gone through is obviously different from the substance of forever barring same-sex couples from marrying.
The 15th amendment is the most procedural of all (if you don't see the right to vote as a procedural protection, then you should give that some more thought)
The 21st amendment is substantive. And what did it do? It repealed another entirely substantive amendment, because people realized that it was stupid to put an entirely substantive amendment in the constitution in the first place.

I've never said that there is no substance. I said that it is centrally procedural. And when the clear reality is that this is a political battle that will go on well into the future, what you clearly achieve with the first sentence of the FMA is to stop political discussion--just as Roe stood in the way of political discussion on the subject of abortion.

I recommend reading John Hart Ely.

As for the FMA, it sacrifices tomorrow's "power to the people" in favor of today's. You are right that this is true of any Amendment. And that's exactly why we don't waste our time amending the constitution with substantive amendments that are the subject of current political debate.

If you want to empower the people over the judges, then you erase the first sentence.

Now, if you really want to include the first sentence, then that's fine. I just wish the politicians would stop lying about what the amendment is for; it isn't about judges--it is about "unholy matrimony."

Posted by: amosanon1 | May 19, 2005 8:03:14 AM

Kaimi, the objective isn't to empower state legislatures, but the American people. The FMA is majoritarian: the American people want marriage to remain between men and women, and can amend the Constitution to ensure that the courts do not circumvent them. The amendment process is the primary power the people have against the kings in black robes(and the structure strongly favors the kings).

AA's complaint that this amendment binds future generations is absurd; all amendments do that. That is their purpose. (Nor is it possible to to neatly distinguish process from substance. The First Amendment does far more than grease the wheels of political speech. And the 2nd Amendment? 8th? 13th? 15th? 21st? Etc.)

Posted by: Matt Evans | May 19, 2005 3:26:53 AM


Granted, many constitutional amendments contain substantive countermajoritarian elements.

But the FMA is being packaged and sold to the American people as a check on countermajoritarian court rulings. You've seen this -- the amendment is described as a way to put power back in the hands of the people, as compared to those kings in black robes.

Given AA's critique, is that really a valid characterization?

Or, if the interest is really in empowering state legislatures and "the people", then why not make easy changes. Like removal of the first sentence.

Posted by: Kaimi | May 16, 2005 10:43:20 AM

The First Amendment protection of speech is hardly substantive. It is a procedural protection designed to ensure that minorities' voices will not be stifled in the political battle. This is, in fact, the PRIMARY example of a procedural protection. As for the Eighth Amendment, the prohibition against cruel and unusual punishment might well be substantive (an argument can be made that it is really procedural in the sense that it is directed against intimidation, but I'm willing to accept that it is substantive).

Of course, the Eighth Amendment may be an excellent example of why substantive protections are, in the long run, the most difficult to deal with: no one knows how to apply "cruel and unusual" today, because everyone recognizes that this is precisely the kind of thing that changes over time according to political understanding.

Finally, I've never suggested that the constitution only has procedural elements; only that the vast majority are procedural. The Eighth Amendment example you've given, assuming it bucks the trend, is an example of a substantive protection of human dignity. If anything substantive should be in the Constitution, then in my view, that's the kind of substance that is appropriate. By contrast, taking a side on a substantive issue that is so clearly at the very heart of a live political argument -- and something that clearly may change over time (just look at western europe and canada, and California and Connecticut, all of which have legislatively chosen to strongly recognize same-sex relationships as marriage or civil unions -- is just an attempt to force today's pure politics on our children; and I see no use or justification for that.

Posted by: amosanon1 | May 15, 2005 8:34:09 AM

AA wrote: "the proposed FMA does more than strip courts of jurisdiction. It strips LEGISLATURES of the power to enact the will of the people--that's what REALLY bugs me."

AA, many parts of the Constitution prevent state legislatures from enacting the will of the people. A majority of people in many states want to protect the American flag from desecration, but they have that pesky, counter-majoritarian (and substantive!) First Amendment to deal with. Then there's the Eighth Amendment's countermajoritarian ban against cruel or unusual punishment (substance, again!). Etc. Etc.

Now how badly do the substantive First and Eighth Amendments bug you, really?

Posted by: Matt Evans | May 15, 2005 12:02:49 AM

MJ, you can be forgiven for not following the strand of my jurisprudence on this matter through all of my many blog posts, although if you bothered following the thread you might not be so quick to attack me.

I think there is a very strong argument that, based on Loving, discrimination against same-sex unions is unconstitutional. If Loving attacked race discrimination, then bans on same-sex marriage are gender discrimination (not just discrimination against homosexuals). Gender discrimination invokes intermediate scrutiny (more than rational basis inquiry, less than strict scrutiny), whatever that means. Personally, I've not seen a compelling argument against same-sex marriage as a normative matter, and so I think it probably fails intermediate scrutiny (though it may well pass rational basis).

So I think there is a strong argument that the many states who refuse to recognize same-sex marriage are acting unconstitutionally.

But I am not so naive as to believe that this argument settles the matter. An originalist view of the Constitution (which I think is certainly within the realm of reasonable interpretive techniques) would not adopt this view (though query whether a true originalist would adopt Loving). And, indeed, someone else who agrees that this is gender discrimination may find some policy interest important enough to pass intermediate scrutiny. So I think different courts act reasonably in deciding differently.

But all of that is at the jurisprudential level. The fact that one believes something to be unconstitutional does not mean that one supports using the courts to achieve the policy aims is the best way to go about things. Thus, even if I believe that judges who find in favor of same-sex unions are acting properly and honorably, I believe that it may well be a better idea (at least in some cases) for advocates of same-sex marriage to drop their lawsuits and fight through the legislatures and grass-roots organizing instead. The reason for this is that we gain more from the struggle than we do by going through courts. (I've made all of this clear in past posts.)

Indeed, I think Brown v. Board was correctly decided, but it may have been disastrous to bring that case 15 years earlier. Courts may have rejected it; or even if they had accepted it, popular resistance may have been so strong as to make it fatal.

The civil rights model is a good one. Unlike abortion rights activists, the civil rights movement spent years and years organizing through the grassroots and going through courts to chip away, little by little, at Jim Crow laws. This was far more effective in the long run (though in the short run, it must have been very very frustrating).

So, as a matter of strategy--and with an eye to the limits of courts and the staying power of judges' decisions--I favor going through legislatures and local bodies. So I, for one, am willing to give up the court fight on the specific issue of same-sex marriage.

As for the FMA, therefore, my problem is not that it prohibits courts from becoming involved. I can't say I exactly support that measure, because it must be explained to me why every other constitutional question in the universe of constitutional law is to be decided by judges, but not this one--it seems to be nothing other than animus. But I can accept it as rational and non-odious.

What I find odious, as I have said now twice (but as you seem to ignore), is that the proposed FMA does more than strip courts of jurisdiction. It strips LEGISLATURES of the power to enact the will of the people--that's what REALLY bugs me. And it should bug you too, if you are one of the many conservatives who claim that the problem with the Mass court's same-sex marriage decision is that it overrode the political will of the people.

I have no doubt that, in my lifetime, majorities in many states will support same-sex marriage or strong civil unions. What the conservatives achieve through the FMA is to prevent such majorities from enacting their preferred policies. The supermajority of today ties the hands of the simple majority of tomorrow.

This, of course, is true of any constitutional provision. But in this case, we are talking about something purely substantive; an issue that is clearly amenable to political change over time. The real reason that conservatives want to make their stand now is that they don't WANT this to be an issue for political discourse whatsoever--just as the advocates who go through courts want it taken out of the political sphere. In other words, you are doing the same thing that you always criticize, except that you are doing it to prevent same-sex marriage rather than to recognize them.

The true populist (and possibly the true small-d democrat) would simply demand that this be a decision for the citizens on statewide and national levels. That's not what people who go through courts want; and that's not what people who support the FMA want. They each just want to achieve their preferred policy goals through whatever means necessary and possible.

That makes for strange bedfellows.

Posted by: amosanon1 | May 14, 2005 9:30:32 PM


I truly don't mean to misconstrue your views, but I confess to being confused as to how you can "believe that Loving and various state EP clauses require recognition of same-sex marriage" yet say you are comfortable to "leave the definition of marriage to the elected branches of government." I don't see how those views can co-exist.

43 states have either by statute or constitutional amendment defined marriage as exclusively between a man and a woman. Am I wrong in that you think all of those states are violating the U.S. Constitution?

If so, you then don't want the matter left up to the legislatures, you want either a state or federal court to tell the states that they cannot define marriage in accordance with history and popular consent.

To the extent those who are saying "no more" are saying that, they are expressly saying "no more" to courts taking the decisions away from legislatures - that which you feel the constitution requires.

As I see it, while you cloak your opposition to the FMA in respect for deference to state legislatures, the last thing you really want is to have the question left up to the states - that's where it is now and you think the courts should take it away.

Could I live with and FMA that left the matter of the definition of marriage up to the states: Yes - that was where conservative wanted the matter before Goodridge et al. But I do see the virtue in settling such a fundamental issue by enshrining it as a bedrock constitutional principle.

Posted by: MJ | May 13, 2005 11:23:49 PM

You've mischaracterized my views in so many ways that I don't know where to start. First, I have said that I think the constitutional argument in favor of same-sex marriage is a strong one; but I also do not think that it is the sole legitimate approach. Next, it is fine to change the constitution; just be clear about how you are changing. You are taking something that has historically been within the power of the states, including legislatures and courts, and also within the power of the federal congress and courts to some degree, and saying "No more. Regardless of what courts say or what 51% of the population says, we will have no same-sex marriage."

I also have not said that congress should not pass ANY VERSION of the FMA. Indeed, I attacked the version on the table. And I specifically attacked it because it prevents majoritarian rule in the future.

You'll note that I've argued in the past that regardless of how strong the constitutional argument may be, supporters of same-sex marriage should focus on state legislatures (a position that is working in CT). I could live with a constitutional amendment that left the definition of marriage solely to state and federal legislatures.

Since you have completely mischaracterized my view, the question is: can you live with that?

Posted by: amosanon1 | May 13, 2005 6:19:52 PM


Your argument that an FMA would be countermajoritarian, even if believed, supposes that this is a matter that would ever be left up to the state legislatures - which it clearly is not. Your view seems to be:

1. Keeping the traditional definition of marriage is unconstitutional, thus it should not be left up to state legislatures, unless they happen to vote consistent with your view, which is the only constitutional view.

2. Changing the constitution to make something constitutional that you believe is currently unconstitutional (a recent constitutional development or has it been unconstitutional since 1866?) would be improper because it would interfere with states rights to...violate the constitution like you say they are currently doing.

3. Thus, the only proper thing for the country to do is to sit back, not pass any version of the FMA, and wait for the federal courts to declare the traditional definition of marriage unconstitutional, thus limiting the ability of state legislature to decide the issue of marriage the old-fashioned way: by judicial fiat.

Conclusion-oriented reasoning.

Posted by: MJ | May 13, 2005 5:25:43 PM

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