Eugene Volokh is an ultra smart guy and cool person. Yet I just don't understand his position on gay marriage, which he does not seem to personally oppose. Like many opponents of gay marriage, however, he does not think that gay marriage should be imposed by the judiciary interpreting the law. While he opposes the Federal Marriage Amendment, he notes what would be a "quite defensible" amendment (Marriage Amendments):
No part of this Constitution shall be interpreted as requiring any state, or the federal government, to recognize or allow same-sex marriages.
Why is this defensible? Why would one who didn't oppose a thing want to ensure that it will never be recognized as a right? This is not a question of whether or not Volokh believes that the Constitution recognizes or should recognize a right to gay marriage, but whether Volokh thinks the question of that interpretation should be (effectively) forever foreclosed? I mean, why? Does Volokh think that such an interpretation would irreparably damage or violate the Constitution in some way?
Do we really want amendments of this nature in the Constitution? If, a couple of decades from now, gay marriage is universally (or almost universally) adopted throughout the states (a not unlikely scenario), will it not seem strange that gay marriage is uniquely constitutionally disabled? Do we really want such attacks on judicial independence enshrined in the Constitution? What precedent is there for this form of judicial control?
I also wonder what other amendments would be justified by this line of reasoning:
This amendment would indeed protect states from national meddling, as opposed to the Federal Marriage Amendment, which will just replace one sort of national interference with another. I think the amendment may be premature, since I doubt that the judicial interpretations that it would prevent will actually happen. But I may be mistaken, and I can certainly see the argument for forestalling them now, rather than waiting until later, when the Amendment may be still harder to pass.
Wouldn't such logic (and even nearly exact language) also have applied, to give just one example, to Loving v. Virginia? After all, following Brown v. Board of Education and other civil rights decisions, it was pretty clear what path the Supreme Court was on, and it didn't favor anti-miscegenists. Indeed, they were lucky when the Court decided not to hear Naim v. Naim in the mid-fifties. I doubt there was a better time to pass an anti-miscegenation amendment forbidding the decision in Loving than in the immediate aftermath of Brown.
It is certainly plausible, nay likely, that the current Supreme Court would not recognize a right to same sex marriage. But why would we want to foreclose this court or future courts from finding such a right in the broad and inclusive language of our Constitution? The First Amendment has never been so broadly interpreted as it is today. Would it have been wise to prevent such expansive interpretation because of the narrower view of free speech in the past?
Of course, I'm not sure that even this amendment would prevent judicial intervention. After all, if a court can't require same sex marriage even though the court concludes that equal protection is being violated by the disparity, couldn't the court simply declare that the state could no longer be in the "marriage" business at all (Why the FMA Would Be the Death of Marriage)?
In the end, I only note that heterosexuals do not have to worry about rights of theirs that aren't yet recognized being pre-emptively snuffed out by amendment because a court might recognize them. Some may think it proper that a minority wait patiently for its rights to be recognized and granted by a bigoted majority. The history of civil rights in this nation, and the very nature of our Constitution, speak out against this notion.
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
1. Brett Bellmore on March 2, 2004 11:03 AM writes...
There are two values here to be concerned with. First, the rights of a minority, and second, the preservation of the Constitution and the rule of law. In the civil rights battles, those values were aligned. We already HAD the post Civil war amendments, which had been rendered toothless by bad faith judicial interpretation, and rulings such as Loving and Brown were simply undoing the earlier damage. (And would have done so far more effectively if the Supreme court weren't so loath to admit that some of it's past rulings on the subject were simply illegitimate.)
In the case of homosexuals, however, these values are in opposition. Court rulings in favor of constitutions which were written by people who hung homosexuals, being interpreted to mandate same sex marriage, may be good policy, but they are very bad judicial practice. If the Constitution should be changed, it should be changed by amendment, not judicial fiat.
And, yes, something will be (perhaps irreparably) damaged by such rulings: The rule of law. And that's something which is ultimately in the interest of minorities more than the majority. Straights will always make out well in a democracy. Homosexuals don't want to win legal protection at the cost of rendering "law" a dead concept.
Permalink to Comment2. Ernest Miller on March 2, 2004 03:46 PM writes...
Well, it is easy enough to say in hindsight that the post-Civil War Amendments had simply been rendered toothless by bad faith judicial interpretation, but it is not clear to me that the Fourteenth Amendment was always meant to abolish laws againts interracial marriage. Separate but equal also seems the more plausible interpretation of the time. Plessy was a 7-1 decision. Justice Harlan's amazing dissent was a cry in the wilderness.
You also blame the Supreme Court for not wanting to overturn precedent, but don't you think the political climate of the time also had some effect. Do you think Brown and Loving would have been effectively enforced in the 1920s? The record isn't clear to me. If the executive hadn't backed the integration rulings, the Supreme Court would be an impotent institution. So, I hardly think the Supreme Court deserves all of the blame.
Yes, the drafters of the Fourteenth Amendment would not have thought it protected homosexuals. That might be somewhat relevant, but then the drafters of the First Amendment probably never envisioned it would protect what they would consider the pornography on broadcast television. Was extending the First Amendment that far bad judicial practice? Should our free speech be limited to what was originally permitted?
Recognizing more inclusive rights has not yet rendered the rule of law a dead concept. To the contrary, it has stregthened our system.
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