Gay Marriage II: First Things and First Principles

The current issue of First Things includes an article by Judge Robert Bork titled "The Necessary amendment". Unfortunately the article itself is not available on-line so I will have to limit my comments to excerpts. This presents a serious problem for me since there is much in the article that I agree with, but due to considerations of space I will have to focus on the specific areas of disagreement. Since I am already cutting against the grain of most conservatives on this issue, I am not eager to continually emphasize the negative. And then there is the fact that of all the conservatives with whom I would expect to disagree over an issue of constitutional law, Bork has got to be at the very bottom of the list. But a bad argument is a bad argument and we are not doing ourselves any service by allowing our political fortunes to be bound to such a policy as the FMA, even if it is advocated by such an authority of Judge Bork.

He begins his discussion with a more or less accurate summary of the controversy. His position, as anyone familiar with his work (especially The Tempting of America which you ought to buy several copies of, if you haven't already) will recognize, is that the fundamental issue is one of judicial activism. He ends the first paragraph by noting that

As an example of judicial incontinence, it will rival Roe v. Wade, and will deal a sever and quite possibly fatal blow to two already badly damaged but indispensable institutions -- marriage and the rule of law in constitutional interpretation.

Having made this wholly accurate claim, however, he jumps a few paragraphs later to the conclusion that

The only real hope of heading off the judicial drive to constitutionalize homosexual marriage is in the adoption of an amendment to the Constitution. [...] Given the stakes riding on the outcome of the effort to adopt the [FMA] are so high, it is surprising that so many social conservatives have expressed opposition. [...] Their mistake, it seems to me, derives from a conservative constitutionalism which, though laudable in the past, is now, most unfortunately obsolete. [...] Conservative constitutionalism today requires taking back the original constitutional order and representative government. If that requires amending the Constitution to recall the judges to their proper function, so be it.

But surely this is a non-sequitur. If the root cause of the problem is judicial activism, why not focus on the cause, rather than its effects? Furthermore, if the judiciary is so untrustworthy with the Constitution as it currently stands, how will adding another amendment for them to misinterpret help matters? I don't wish to sound flippant about such a crucial issue, but there are always alternatives in politics and I strongly suggest that the conservative leaders who are advocating this amendment suffer from a failure of imagination. I will have more to say on what I see as some possible alternatives and why they are better than the current course of action in a later post, but for the present, I will point to my earlier comments regarding Rep Ron Lewis' proposed federal legislation. (See also here.)

After detailing some of the reasons that judicial activism will thwart any attempt to provide a legislative solution (with which, again, I am largely in agreement) Bork goes on to criticize Michael Greve's proposed alternate amendment.

This amendment would leave states free to give effect to the acts of other states or not, as they see fit. [...] There seem both legal and sociological problems with this proposal. The language leaves out of account what state courts may do with state constitutions.

This is certainly true, but I do not see that this is a good reason to amend the Federal Constitution. The Fourteenth Amendment already goes too far, in my opinion, in applying Federal jurisdiction over State laws and constitutions. The creeping dominance of the national government is at least as big a threat to liberty as autocratic judges. However good the motives, and I concede that the motives of those who drafted the Fourteenth Amendment were among the highest, there always comes a pharaoh who knoweth not Joseph to misuse the additional power that well meaning people gives him. Better to abandon the field entirely than to fight under this flag.

Bork goes on to examine the idea of jurisdiction stripping per Article III, Section 2. His objection is pretty much identical to this roundup of the issue that I posted on July 22. See especially Eugene Volokh's comments.

He then turns to the social consequences of gay marriage.

Amending the United States Constitution to save it and marriage from freebooting judges would be extremely difficult in the best of circumstances, but it is made immeasurably more difficult because so many people ask: How does homosexual marriage affect me?

Since this is one of my questions as well, I had hoped that Bork might be able to provide an answer that was more robust than what I have seen to date among conservative commentators. Alas, it is not to be:

Studies of the effects of same-sex marriage in Scandinavia and the Netherlands by Stanley Kurtz raise at least the inference that when there is a powerful (and ultimately successful) campaign by secular elites for homosexual marriage, traditional marriage is demeaned and comes to be perceived as just one more sexual arrangement among others. The symbolic link between marriage, procreation, and family is broken and there is a rapid and persistent decline in heterosexual marriages.

The problem with using this study is that it has been called pretty seriously into question by Lee Badgett:

Despite what Kurtz might say, the apocalypse has not yet arrived. In fact, the numbers show that heterosexual marriage looks pretty healthy in Scandinavia, where same-sex couples have had rights the longest. In Denmark, for example, the marriage rate had been declining for a half-century but turned around in the early 1980s. After the 1989 passage of the registered-partner law, the marriage rate continued to climb; Danish heterosexual marriage rates are now the highest they've been since the early 1970's. And the most recent marriage rates in Sweden, Norway, and Iceland are all higher than the rates for the years before the partner laws were passed. Furthermore, in the 1990s, divorce rates in Scandinavia remained basically unchanged.

It is difficult to determine whose experts are more correct in these sorts of controversies, but at best we can say that Kurtz's (and therefore Bork's) case is not made. Andrew Sullivan has some further comments

Then Kurtz tries to argue that there is a causation effect between registered partnerships for gays and the decline of traditional marriage. He proves nothing. There are so many independent variables - from secularism to contraception to cultural gender roles and on and on - that such a conclusion is intellectually preposterous. Kurtz does his best to hide this obvious truth. Check the words: the decline in marriage and gay registered partnerships are "linked"; they are both "an effect and a cause"; in the same paragraph, same-sex marriage has "undermined" marriage - then it has simply "locked in and reinforced" an "existing trend;" the decline of marriage "closely tracks" the emergence of gay registered partnerships. Please. The decline of smoking in America "closely tracks" the success of Republicans in Congress in the 1990s. So what? These kinds of unsubstantiated correlations, slippery links and simple associations would be laughed out of a freshman social science class. Did no one edit this? The truth is that for several decades, revolutions in contraception, feminism, the economy have all severed the linkage between marriage and procreation. If you want to take the institution back, go ahead and try. Or go visit Saudi Arabia (or Muslim enclaves in Scandinavia) where those connections are still tightly bound. But to pin all the change in marriage on gay couples - the only group that has had nothing to do with marriage decline in this century - is grotesque. And given that coupling - not procreation - is what civil marriage now is, we have two options. Accelerate the decline by devising new and more elaborate marriage-lite options for gays and straights (which is now, bizarrely, the position of National Review); or arrest it by bringing gays into the real institution and ask the same standards of them that we ask of everyone else. Then get rid of all the counterfeits. The great sadness of the last two decades is that many of us tried to persuade conservatives that they should put their defense of marriage before their fear and loathing of gays. For most, but not all, conservatives, we failed. What's left is a Republican party devoted primarily to exclusion and fear - and to undermining the very institution they want to defend. And they still don't see it. Maybe it will take their own destruction of civil marriage before they do.

Despite the snide tone this is the argument to beat. So far, I have not seen any conservative up to the task, and Bork adds essentially nothing to the debate. I would like to try my hand at refuting Sullivan at some point, but not in the context of the FMA.

Bork's conclusion is particularly unconvincing. Having detailed all of the obstacles to an amendment, he nevertheless justifies it on the grounds that

Finally, it is worth considering that a vigorous campaign for the FMA could have a salutary effect on the American judiciary. The debates, win or lose, might also lead the public to a more realistic view of the courts.

I am sorry but this is mere madness. If the debates could be thus salutary as a side-effect of the discussion of homosexual marriage, how much stronger could the effect be if we focused on the real issue? But an attempt to amend the Constitution is far too serious an undertaking in the hopes that, even if we lose, we might at least have raised the public consciousness. And I suspect that his "win or lose" is a confession that we probably will lose the debate. In that case there are some political consequences, such as reinforcing the association of conservatives with perceived bigotry and mean-spiritedness, that will overwhelm any supposed salutary effects.

Judge Bork does issue a very meaningful challenge with which I would like to end this post:

Abandoning resistance here might nevertheless be seen by some as an intelligent strategy, but that would be true only if there were a more defensible line to fall back to. It is difficult to see what line that might be.

I would never advocate abandoning resistance, but I do think there are some opportunities for counter-attack that might prove fruitful. I will detail these in my next post on this subject.