Obligatory Semi-Weekly Times & Seasons Homosexuality and Same-Sex Marriage Post, #13 (Yes, I’ve Counted)

Two BYU political science professors denounce the proposed Federal Marriage Amendment. One BYU law professor defends it. Both are solid expressions of their respective points of view. Responding to them will, of course, turn this thread into a debate over the nature of marriage–but before that happens, I’d like to point out that marriage itself plays almost no role in their actual claims.

Wilkins repeats over and over how, in his view, the Supreme Court’s inovcation of the “meaning of life” and “mysteries of the universe” in Lawrence v. Texas has allowed America’s judiciary to completely ignore the “history, traditions and actual practices of the American people”; in the face of this judicial usurpation, a constitutional amendment is our only recourse. Wilkins never explains what those traditions and actual practices are, and in a sense it doesn’t really matter. His entire argument rests upon the idea that recent judicial activism has put the constitutional order itself in peril: that, thanks to “the judges” and “the courts,” the ordinary and proper understanding of the role of the Constitution must be thrown out the window. Wilkins concludes: “I wish with all my heart that it was not necessary to even think about putting marriage in the Constitution….By placing marriage in the Constitution, the judges…have done violence to the very idea of a written Constitution, have eroded legislative power, and have significantly expanded their own power.” Direct constitutional action is therefore the only route remaining to defenders of original system. It isn’t difficult to see that Wilkins’s rhetoric is perfectly compatible with lamentations about the “end of democracy” associated with other conservative thinkers; substitute abortion for marriage, and Wilkins’s essay would have fit right in.

Why don’t Richard Davis and Byron Daynes see this threat? Because they clearly don’t; for them, the Constitution is “in play,” an important but still just one element of the polity itself, in a way very different from Wilkins’s apparent presumption that the polity is defined by its constitution. (This is made explicit when Daynes and Davis argue that the Constitution should “reflect our most basic structure and principles of government,” which of course means that they see the American polity as involving governing “structures and principles” which exist apart from and presumably independent of any specific constitutional text.) Hence in the face of the presumed “usurpation” of power by the judiciary they see simply another iteration in the ongoing struggle over the sources and forms of power in the polity overall, a struggle as old as Thomas Jefferson and John Marshall, or Dwight Eisenhower and Earl Warren. Davis and Daynes see the Federal Marriage Amendment as an attempt to make social policy a part of our constitutional order; that is, for them, it really is about same-sex marriage, and in their view weaving any given policy into the basic elements of the polity itself is a bad idea (as the America experience with Prohibition supposedly demonstrates). For Wilkins, on the other hand, the actual content of the policy is secondary to, or at least at best merely equal to, the legal concern for constitutional preservation. Reading these two essays side by side makes me wonder why Wilkins isn’t doing like some strict constructionists and push for a legislative act which would reign in judicial power. I’ve no idea what chance of success such an approach might have, but if enacted it would certainly satisfy Wilkins’s stated concerns, and without all the of vaguely discomforting “the judges made me do it” rhetoric. Moreover, maybe he’d even have political scientists like Daynes and Davis on his side.

Of course, I think I know why Wilkins wouldn’t take such a route–because for him, the U.S. Constitution is and should be emblematic of a certain kind of moral order. In his view, I suspect, rectifying the actions of judges who disregard the (again, undefined) “history, traditions and actual practices” in regards to marriage and sexuality would be seen as a matter of killing two birds with one stone, a binding of the polity and the polity’s legal order to a particular moral scheme. As one who has sympathy for certain varieties of religious establishment and believes in the substantiality (and appropriateness) of certain forms of civic religion, I admire what I take to be Wilkins’s holistic approach. But I don’t agree with it, and don’t support it, simply because I think (as a Mormon, as well as for other reasons), that the way he and other defenders of the FMA set up this battle simply doesn’t, for better or worse (very likely worse), serve America’s history, traditions, and practices of marriage and sexuality nearly as well as they like to imagine it does.

17 comments for “Obligatory Semi-Weekly Times & Seasons Homosexuality and Same-Sex Marriage Post, #13 (Yes, I’ve Counted)

  1. March 25, 2004 at 2:34 pm

    BTW, I have always found the argument that the constitution as a pristine document enshrined only “big” “fundamental” interests rather than “mere” political battles, a bit silly. Consider the following provisions in the original constitution:

    Art. I, s. 5, cl. 3 — Requirement that each house keep a journal of proceedings. Includes procedures for getting votes recorded.

    Art. I, s. 7, cl. 2 — Requirements for recording presidential veto messages in legislative journals.

    Art. I, s. 8, cl. 5 — Congressional power over weights and measures.

    Art. I, s. 9, cl. 1 — Sunset provision on gag rule on the slave trade.

    Art. I, s. 9, cl. 4 — Setting forth rules for the calculation of “Capitation” taxes.

    Art. I, s. 10, cl. 1 — Regulating state bills of credit and contracts.

    Art. I, s. 10, cl. 2 — Regulating state tax policy.

    Art. III, s. 3, cl. 1 — Setting forth the evidentiary rules governing treason trials.

    Art. III, s. 3, cl 2 — Setting forth limits on Congressional power over the inheritence of property.

  2. March 25, 2004 at 2:47 pm

    >Art. I, s. 5, cl. 3
    >Art. I, s. 7, cl. 2

    Purely procedural; no social or political policy therein.

    >Art. I, s. 8, cl. 5
    >Art. I, s. 10, cl. 1
    >Art. I, s. 10, cl. 2
    >Art. III, s. 3, cl 2

    Matters of federalism; perfectly appropriate for polity-level discussions.

    >Art. I, s. 9, cl. 1
    >Art. I, s. 9, cl. 4
    >Art. III, s. 3, cl. 1

    With these three, you may have a point. I don’t know what “capitulation” taxes are, or how the fit into the late 18th-century American economy, so I can’t comment on that. The gag rule on the slave was very clearly a social compromise worked into the fabric of the constitution, one presumably considered necessary for the document’s ratification and legitimacy. Might that be grounds for thinking that in a moment of crisis over marriage, a definition of such might be appropriately written into the document for the sake of preserving its popular validity? Perhaps. As for the last, treason is also clearly a political matter–but of course none of the individual states could be allowed to handle such cases independently, and so it had to be made constitutional as well. Still, I think the historical record which Davis and Daynes invoke is a strong one…strong enough for Wilkins to implicitly acknowledge it, at least.

  3. Adam Greenwood
    March 25, 2004 at 2:52 pm

    I’m glad you posted this as much for the excellent links to your posts elsewhere as for the excellent discussion here.

    If I may speak as a fellow traveler to Wilkins and many participants to the First Things debate: you are right that the Amendment is two-purposed. It does right by marriage and it puts the judiciary in its place. You are also correct that this second objective would be equally, perhaps better, served by something other than a Constitutional amendment, something like jurisdiction-stripping or so forth.

    So why go for an amendment? I think you radically underestimate the attachment of the American people to the Constitution and the Supreme Court as its arbiter. The kinds of changes you propose have zero chance of success and would probably induce a constitutional crisis. Something like this amendment–some kind of public rebuke to the Court–is necessary to prepare the way for the changes you’re discussing.

    Also, I commented on your Mormons and Polygamy post.

  4. Adam Greenwood
    March 25, 2004 at 2:53 pm

    Or quartering troops, or the bankruptcy and contract provisions which were aimed at state debtor relief.

  5. March 25, 2004 at 2:57 pm

    Actually, state treason trials were if not common in the 19th century, at least not unusual. Most famously, I believe that John Brown was executed for treason against the State of Virginia and as I recall Joseph Smith was accused (but not tried) of treason against the state of Missouri. Article III applies to treason against the United States.

    I am curious as to why you think that the regulation of state public debt is an issue of federalism? We are talking about how a state treats its own bonds and debt insturments. Furthermore, this was a hotly contested political issue. Essentially, Hamilton and other federalists got the provisions in the constitution to keep populist legislatures (mainly in the South) from ruining American credit in the European capital markets, particularlly in England and the Netherlands, where most of the American debt was held.

  6. March 25, 2004 at 3:08 pm


    A constitutional amendment as a “rebuke” to the Court? Interesting possibility. Strictly speaking, however, for the passage of such an amendment to have such a rebuking effect, wouldn’t it be necessary or at least appropriate for the amendment to arise through the convention process, rather than the slow process of state ratification? One’s opponents might always claim that tightly organized conservatives won passage through slick politics in state legislatures; wouldn’t the popular, “rebuking” quality of the amendment come through more clearly through adoption via conventions? Just a thought.

    Incidentally, what do you think of the comments of Noah Millman, whom I link to? Particularly the following:

    “I hope the amendment doesn’t pass. But what else is to be done? I’ve suggested elsewhere that Bob Lafollette’s proposed amendment to empower a Senate super-majority to override a Supreme Court decision be revived in some form or another. Massachusetts is currently being tested as to whether they are ruled by a court or by the people. That’s a matter for the people of Massachusetts to resolve, and I suspect they will do so. I don’t see why the people of Wisconsin or Kansas or anywhere else have to opine. If the people of Massachusetts decline to rebuke their Supreme Court, and meekly accept its diktats, so much the worse for the sons and daughters of Cotton Mather. More generally, we should be rolling back the scope of equal-protection language in our state constitutions, because this is the banner under which same-sex marriage and legal androgyny generally is advancing, just as Phyllis Schlafly said it would. And we should be pushing for laws that would strengthen marriage explicitly: reintroducing the concept of fault into divorce law, and the distinction between divorce and annulment; restoring the presumption of paternity (the “marriage veil”) that has been pierced in recent years; etc. Passing these laws will necessarily result in the reintroduction of a certain asymmetry in the treatment of men and women in marriage law, which in turn will make it clear – to the courts and to the people – that marriage is about men and women – and children – and not abstract “people” and their love. Same-sex marriage is a symptom of an underlying legal dysfunction, and amending the Constitution to treat a symptom strikes me as very foolish indeed.”

  7. March 25, 2004 at 3:15 pm


    “Essentially, Hamilton and other federalists got the provisions in the constitution to keep populist legislatures (mainly in the South) from ruining American credit in the European capital markets, particularlly in England and the Netherlands, where most of the American debt was held.”

    I don’t know much about America’s constitutional history, but doesn’t this answer your own question? The matter of state debts and credit ratings were seen as a national issue–and hence a matter of determining appropriate federal powers and responsibilities–to the extent they affected the overall good of the country. There may have been a particular political policy end in mind, but the concern itself fits easily into a Hamiltonian understanding of state-federal relations and procedures. (Though admittedly not, perhaps, other understandings of the Constitution.)

  8. March 25, 2004 at 3:18 pm

    It seems to me that if it was simply an issue of constitutional structure, rather than simply fiscal politics, you would have a provision giving congress power to prohibit certain forms of state debt modification and then had the policy debate in congress. Instead, Hamilton et al wrote their policy preference into the constitution.

  9. Chris R
    March 25, 2004 at 3:26 pm


    Your last reference should be Art, IV. s. 3, cl. 2, but I wont hold it against you. :) You also missed out on the State of the Union clause in Art. II.

    The Constitution was drafted with a belief that “it was the new science of politics,” but grounded in the pratical concerns of the day. However, your list of “minor” clauses and political compromises in the Constitution neglects the idea that since its adoption, amendments to the Constitution are mostly uniform in enshrining new rights into the governing document or tinkering with the formation of our government.

    The exceptions are the 11th (state immunity), and the 17th and 21st (Prohibition). What makes the FMA unique is that for the first time since prohibition, an amenment to the Constitution would take away rights of the people.

    It is true that members of Congress often propose amendments to the Constitution to enshrine current policies, or as a political reaction to an adverse court decision, so the FMA is no different in this regard. In my belief, many of these amendments (flag burning, FMA, pledge of allegiance?) are trivial in the operation of the country, or have the potential to upset the delicate banance of the grand principles fashioned by the framers of the Constitution.

  10. Adam Greenwood
    March 25, 2004 at 3:37 pm

    Grey Fox,
    I think you underestimate the degree to which Federalists and supporters of the Constitution wanted to rein in loose state credit and pro-debtor laws simply because they thought them unwise policy and not because they saw them as affecting national interests in a way other things didn’t.

    As for Millman: I don’t think his LaFollett amendment has a ghost of a chance. It is precisely the sort of strike at our current Constitutional order that will shock the people unless they’ve been prepared for it by a series of events. Neither is repealing state equal protection at all feasible: it attacks and entire principle most Americans support merely because of one mistaken application of that principle. The other political actions he suggests are feasible and wise–emphasizing fault in divorce, making paternity and therefore custody a matter of marriage, not of adultery, putting some teeth into adultery laws by bringing back the action for alienation of affection–I like ’em all. Millman is just plain wrong to think that gay marriage doesn’t matter, though. It allows action on an issue where the public is already leaning our way and with popular overtones of the people vs. an unelected judiciary. Furthermore, if successful, Millman rather underestimates the effect of getting something into the Constitution. It’s not only our basic law, it’s the basic scripture of the American religion. Judges are hostile to us anyway and probably won’t give the things penumbras, but the people aren’t. To the unpersuaded, a FMA will be a strong argument for stronger marriage laws or for fundamental differences between men and women. Finally, it’s not always given to us to choose our battles. Maybe I’d rather a national fight over single-parent adoption, but maybe what I’d rather doesn’t matter. We must fight for God on the ground he decrees. Gay marriage is the issue that gets all the press, its the one people have been thinking about, its the one that the fungible gender activists are pushing, and its the one that large sections of the country have determined to fight. The Amendment is going forward–our hesitation on the grounds that it might go down to disastrous defeat will only ensure that it does. It’s too late, Mr. Fox, to back down.

    And in some sense, who wants to? Service in a losing cause is pure service, and a failed law can succeed if it allows God to judge a people because it has required those people to take sides.

  11. Adam Greenwood
    March 25, 2004 at 3:40 pm

    “Take away rights of the people”

    Doesn’t that sort of beg the question? Take the 13th Amendment, for example. Maybe you could say that it took away rights of the people, but I’d prefer not to think of it that way.

  12. March 25, 2004 at 4:03 pm

    Two cheers for the BYU PoliSci profs. The football analogy should really resonate with Utah readers.

    When the law prof starts off with, “I am one of the few constitutional law professors in the country who actually reads the Constitution,” his credibility takes a big hit right there. Does he really believe that?

  13. Chris R
    March 25, 2004 at 4:32 pm


    You explain that the equal protection clauses of the state constitutions are not likely to be tinkered with despite “one mistaken application of that principle.” I am curious how the decisons by the state supreme courts of Hawaii, Vermont, and Massachusetts are mistaken applications of equal protection.

    Fundamentally I disagree. Unlike other decisions which rely on vague notions of privacy in crafting a decision, for example, equal protection and equal application of the law seem more clear. While the creators of these amendments surely never considered SSM as being encompassed in these clauses, the text seems relatively clear in what is or what is not constitutional. Just because it was the accepted and uncontested policy that the State should not recognize same sex partnerships or marriages, does not mean that the lack or recognition of SSM or other type of union makes the decisions of Hawaii, Vermont, and Massachusetts, mistaken applications.

    While I am not suggesting that your logic reaches this conclusion, Brown was decried as a “mistaken application” of the law when it was decided. Segregation was an accepted practice from the time of the adoption of the 14th Amendment. Just because we now accept Brown, and decry Plessy as one of the worst cases in American history, we cannot forget that it took years, if not decades for Brown to achieve the mythical status it has now.

    While I believe that it is usually best that social policies come from our elected representatives, and not the courts, that does not mean that either the courts should not enter into social politics when they believe an injustice has occured, or that the legislatures should not act to combat discrimination in the law. If my rights were violated, I would seek justice from the legislature and the courts. My rights are extremely important to me and if violated, would want immediate relief.

    While for me, and for most of us, this debate over the FMA is a debate about general morals) semantics and equal rights. With or without passage, few attitudes will change about this subject. However, for a segment of the population, this debate has larger and personal implcations, including things we take for granted, such as the right to visit a loved one in the hospital. These aspects of everyone’s life are among the most important things we cherish. To me, we have a responsibility, a duty, to care for the needs of men and women everywhere before we worry about creating artifical distinctions in society’s governing document.

    As I argued in an eariler post about the problems of gender discrimination, every human has similar talents and similar needs, regardless of gender or ethnicity. Jesus taught us that the primary commandments are to love God and our neighbors. That is what I believed we will be primarily judged upon, not how avidly we fight to place the FMA in the United States Constitution.

  14. Adam Greenwood
    March 25, 2004 at 5:13 pm

    Your reading of equal protection clauses only makes sense if you assume that men are no different from women and gay relations are no different from heterosexual relationships. If there is a difference, it does make sense to make distinctions, just like the law distinguishes between people in a thousand other ways.

    Besides, you’re fundamentally misreading what this thread is about. The Grey Fox is arguing that, if equal protection is misapplied to impose gay marriage, then the proper remedy would be to eliminate those clauses from state constitutions. Given that same premise, I’m arguing that the proper remedy would be to pass something like the FMA which strips the courts of the ability to make that error. Error is the premise, not the conclusion.

  15. March 25, 2004 at 8:44 pm

    I think Prof. Wilkins is serious and he has a point, even if he was being somewhat hyperbolic. His point about being one of the few who actually reads the Constitution had more to do with his manner of interpreting the Constitution rather than truly being one of only a few who read it. I think he discusses this point further by point to the text and understanding of the text as no where authorizing same-sex marriage.

  16. Ivan Wolfe
    March 25, 2004 at 11:28 pm

    Check this site out:

    scroll down to the
    the last paragraph reads, in part:
    “But within hours a Ninth U.S. Circuit Court of Appeals panel issued a “pre-emptive ruling” overturning proposed Constitutional amendments XXVIII and XXIX on the grounds that they would have been “approved by ignorant legislators and voters, rather than progressive federal jurists.”

  17. Matt Evans
    March 26, 2004 at 9:20 pm

    I noticed the poli sci profs avoided addressing social policy Amendments 13 and 14.

    Granted, the force of their rhetoric would have been severely compromised had they reminded people that two of the most popular amendments of the past 200 years were to formalize preferred social policies.

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