Tag: gay marriage

How Would I Amend the Constitution? End All Extra-Legal Amendments Thereto

The Fiscal Times recently asked me and a number of others, “How would you amend the Constitution?“ Here’s how the Times categorized my response:

DON’T CHANGE A THING

Several major conservative thinkers suggested that the Constitution does not need to be changed, but rather to have its principle of limited government guide both Congress and the president.

Michael Cannon at the Cato Institute noted that the Fourth Amendment protects against warrantless searches, “yet the National Security Agency tracks everybody with Congress’ tacit if not explicit consent.”

First of all, and I fear I will be explaining this to reporters for the rest of my life, I am not a conservative. I support gay marriage, cutting military spending, closing all U.S. bases in foreign nations, and ending the prohibitions on drugs, gambling, and prostitution. Of such stuff conservatives are not made.

Second, the above excerpt scarcely captures my response to the Times’ inquiry. Don’t change a thing?? Here is my response in full:

There are constitutional amendments I want to see. And yet.

Americans don’t need to amend the Constitution so much as they need politicians to honor what the Constitution already says. The Constitution creates a government of enumerated and therefore limited powers; Congress and the president routinely exceed those powers. The First Amendment protects freedom of speech, particularly political speech; Congress heavily regulates and rations political speech. The Fourth Amendment protects “persons, houses, papers, and effects” from “unreasonable searches” and requires “no warrants shall issue, but upon probable cause”; yet the NSA tracks everybody with Congress’ tacit if not explicit consent. The states could ratify an amendment that says, “Hey, we mean it!”; but the Constitution already contains two amendments saying that (the Ninth and Tenth). What is the point of amending the Constitution if Congress will just ignore that amendment too?

This could soon become a Very Big Problem. If Congress keeps acting like it is not bound by the Constitution, then eventually the people will conclude that they aren’t either.

That is, I don’t want to amend the Constitution so much as I want to stop politicians and bureaucrats from amending it unlawfully – i.e., without going through the Article V amendment process  – and stop the courts from rubber-stamping those extra-legal amendments. 

It would be great if, as the Times writes, the Constitution’s principle of limited government were to guide both Congress and the president. I would settle for having the plain words of the Constitution constrain Congress and the president. That constraint will have to come from the people, and federal judges.

Virginia Republican Candidates Not Joining 21st Century

Last week I reported that 40 percent of Virginia Republicans – and 56 percent of independents – now support gay marriage. But on Saturday the Virginia GOP nominated three statewide candidates whose views on homosexuality and marriage equality range from unwavering opposition to bigoted to insane

Gubernatorial nominee Ken Cuccinelli came out swinging against the “extremist” label in his convention acceptance speech:

“When did it become extreme to protect children from predators and human traffickers?” Cuccinelli asked. “When did it become extreme to guard our Constitution from overreach? When did it become extreme to secure the freedom of the wrongly convicted? And when did it become extreme to ask government to spend a little less so our economy can grow?”

Like Gov. Bob McDonnell four years ago, Cuccinelli will try to focus on jobs and the economy in his race against big-government crony capitalist Terry McAuliffe. But there’s a reason that a report by the Republican National Committee found that voters see the GOP as “scary,” “narrow minded,” and “out of touch” – and the Virginia Republican ticket is part of that reason.

Republicans Slowly Catch Up to the 21st Century

Public opinion on gay marriage has changed a lot in recent years, perhaps more rapidly than on any other major issue. Yet as Jonathan Rauch noted last year, one demographic group has resisted that change: Republicans. As he wrote:

In moving as decisively as they have on gay rights, the Democrats are following the country….

But the dissenters have not vanished. Rather, they have holed up inside the Republican Party. According to polling by the Pew Research Center, two-thirds of Democrats and almost 60 percent of independents call same-sex relations morally acceptable; only a bit over a third of Republicans agree. White evangelicals, in particular, are unique among major demographic and religious categories (including Catholics) in their fierce disapproval of homosexuality, and these days the vast majority of them (70 percent, according to Pew) are Republican or lean Republican.

To put the matter bluntly, the Republican Party is becoming an isolated bastion of anti-gay sentiment. That is not because Republicans and conservatives are immune to the general trend toward acceptance of homosexuality. It is because the trend is slower among Republicans.

But in today’s Washington Post there’s some interesting evidence of movement among Republicans. A strong majority of voters in Virginia, a state that passed a gay marriage ban in 2006, and 40 percent of Republicans now say “it should be legal for gay couples to get married.” Note the changes from 2006 in this Post graphic:

Washington Post graphic

Note especially that column in the lower right. How has public opinion in Virginia changed since the 2006 amendment vote? Support for gay marriage (or opposition to a ban) has risen by 13 points. Independents are up only 3 points. Democrats are up by 7 points, perhaps because of the endorsement of President Obama. And Republican support is up 25 points.

Last year, I called the sudden silence of Republican leaders on gay marriage “the sound of social change.” It looks like they knew which way the wind was blowing in their own base.

Did Gay Marriage Bans Help Bush Win in 2004?

Dan Balz writes in the Washington Post, as many reporters have this week, 

In 2004, Republicans used ballot initiatives barring same-sex marriage to spur turnout among their conservative voters. That strategy helped then-President George W. Bush win reelection.

But did it? I argued in 2006 that it didn’t:

It’s true that states with such initiatives voted for Bush at higher rates than other states, but that’s mostly because the bans were proposed in conservative states. In fact, Bush’s share of the vote rose just slightly less in the marriage-ban states than in the other states: up 2.6 percent in the states with marriage bans on the ballot, up 2.9 percent in the other states.

Political scientist Simon Jackman of Stanford has more here (pdf). He concludes that the marriage referenda tended to increase turnout but not to increase Bush’s share of the vote. And in a county-by-county analysis of Ohio, he found no clear relationship between increased turnout, support for the marriage ban, and increased support for Bush.

Matthew Dowd made the same point yesterday:

Speaking from experience as the chief strategist in 2004 for President Bush, I saw in close detail how little gay marriage could influence turnout of conservatives or evangelicals.   In 2003 and 2004, we did a series of public opinion tests on different messages related to the micro targeting project that would cause voter groups to turn out more in President Bush’s favor.  We tested social issues as well as messages related to the economy, national security, taxes and the size of the federal government.  Not a single social issue (which included gay marriage) fell on the effectiveness scale in the top eight messages.

Further, in analyzing the election returns in the aftermath of the 2004 presidential race an interesting set of data was revealed.   In states that had gay marriage amendments on the ballot including key target states, there was no statistical difference in turnout of conservatives from states that did not have these amendments on the ballot.  Gay marriage had no effect on turnout even among the most conservative potential voters in both the data before Election Day and the returns on Election Day.

Other senior officials from the 2004 Bush campaign confirm: It wasn’t gay marriage that brought social conservatives to the polls, it was national security and the war on terror.

At any rate, as Balz noted, the politics of gay marriage have changed for sure, in Ohio and elsewhere.

Jim DeMint’s Misfire on Marriage

Jim DeMint, former senator and future president of the Heritage Foundation, writes a column for USA Today opposing gay marriage. But like so many social conservatives, he supports his position with a sleight of hand. DeMint writes:

Without strong families grounded in marriage, we cannot hold back the ever-expanding power of government. As the marriage culture weakens, Big Government grows. Just look how the welfare state has expanded as the unwed childbearing rate has grown from single digits in the 1960s to more than 40% today.

Marriage policy exists to encourage a man and a woman to commit to each other permanently and exclusively as husband and wife and to be father and mother to any children. Sound marriage policy strengthens civil society and reduces the role of government.

The erosion of marriage costs taxpayers. And it’s not just conservatives who say this. Even the left-leaning think tank, Brookings Institution, attributed $229 billion in welfare expenditures between 1970 and 1996 to the breakdown of marriage.

Yes indeed. Stable families are less likely to be on welfare. As Ron Haskins and Isabel Sawhill of Brookings write,

Our research shows that if you want to avoid poverty and join the middle class in the United States, you need to complete high school (at a minimum), work full time and marry before you have children. If you do all three, your chances of being poor fall from 12 percent to 2 percent, and your chances of joining the middle class or above rise from 56 to 74 percent. 

But DeMint and other social conservatives make a logical leap when they connect that point to gay marriage. Gay people making the emotional and financial commitments of marriage is not the cause of family breakdown or welfare spending.

When DeMint says that “family breakdown” is causing poverty – and thus a demand for higher government spending – he knows that he’s really talking about unwed motherhood, divorce, children growing up without fathers, and the resulting high rates of welfare usage and crime. 

So why raise the problems of broken families and then propose to prevent gay people from getting married? Why all the focus on issues that would do nothing to solve the problems of “family breakdown” and what DeMint has elsewhere called “the high cost of a dysfunctional society”? Well, solving the problems of divorce and unwed motherhood is hard. And lots of Republican and conservative voters have been divorced. A constitutional amendment to ban divorce wouldn’t go over very well with even the social-conservative constituency. A legal ban on premarital sex would address the problem, but even social conservatives realize that it would be an imprudent exercise of state power. Far better to pick on a small group, a group not perceived to be part of the Republican constituency, and blame them for social breakdown and its associated costs.

But you won’t find your keys on Main Street if you dropped them on Green Street, and you won’t reduce the costs of social breakdown by keeping gays unmarried and not letting them adopt orphans.

When Did Laws Denying Same-Sex Couples Marriage Licenses Become Unconstitutional?

Readers of this blog know that Cato filed a brief in Hollingsworth v. Perry arguing that state prohibitions on same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment.  But since when have they done that?  More broadly, to quote a colloquy between Justice Scalia and Ted Olson in the Perry argument:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? …

MR. OLSON: It was constitutional when we -­ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

With due respect to Ted Olson, a former solicitor general who’s argued more cases than I’ve watched, I think he missed the mark on this one.  How do rights spontaneously emerge?  To pick up on one of the above examples, was segregation constitutional in 1900 but then somehow not 50 years later?  No, Plessy v. Ferguson was incorrectly decided in 1896 and Brown v. Board of Education overruled it rather than merely asserting that there was an “evolutionary cycle.”  Justice Scalia himself recognized that state racial discrimination of all kinds became unconsitutional when the Fourteenth Amendment was ratified, in 1868 – and not at some time in future when each particular instance of it was found to violate that provision.

And so, either it was unconstitutional to exclude same-sex couples from marriage in 1868 or it’s still constitutional to do so.  Josh Blackman and I wrote about doing this “originalism at the right time” in our exegesis of the Privileges or Immunities Clause in the context of the right to keep and bear arms, Keeping Pandora’s Box Sealed.  (Josh later extended that analysis in a short piece on gender equality and sex discrimination.)

Which isn’t to say that what the challengers have to prove here that the drafters or ratifiers of the Fourteenth Amendment had gay marriage in mind.  But it does mean that you have to look at what “equal protection of the laws” in 1868 and apply that understanding accordingly.  As Elizabeth Wydra, my co-counsel on our Perry brief, wrote on the Constitutional Accountability Center’s blog:

While race was obviously at the forefront of the minds of the Amendment’s drafters – after all, they had just secured an amendment banning slavery in the wake of a brutal civil war–they specifically chose language that would protect against unequal treatment based on more than just racial discrimination, and in fact affirmatively rejected narrower proposals that would prohibit only racial discrimination.

Even so, had Olson given Justice Scalia the answer I have suggested, Scalia surely would have retorted that there was no way the American people were thinking of marriage equality for gay and lesbian couples when they ratified the Amendment. That’s not the point. No originalist – not even Justice Scalia – believes that the plain words of the Constitution apply only in the ways the framers expected. The ruling Justice Scalia announced from the bench just before the start of arguments this morning is a perfect example: just because there weren’t drug-sniffing police dogs in 1791, doesn’t mean their use can’t violate the Fourth Amendment’s protection against unreasonable searches and seizures, as the Court held today in Florida v. Jardines.

The Constitution guarantees equal protection of the laws to “any person.” In looking to what rights were understood to be protected equally, the framers of the Fourteenth Amendment understood state-sanctioned marriage as a personal, individual right that must be made available on an equal basis to all persons. Accordingly, by writing into the Constitution a requirement of equality under the law and equality of basic rights for all persons, which included the right to marry, the Amendment’s framers ensured that discriminatory state laws would not stand in the way of Americans exercising their right to marry the person of their own choosing. Laws that discriminate and deny to members of certain groups, including gays and lesbians, the right to marry the person of one’s choice thus contravene the original meaning of the Fourteenth Amendment.

See also Josh Blackman and Orin Kerr.  And for more on the original meaning of the Equal Protection Clause, see my op-ed with CAC’s president, Doug Kendall.

Supreme Court Could Also Strike Down DOMA on Federalism Grounds

One of the more interesting and potentially influential amicus briefs in United States v. Windsor, the case challenging DOMA Section 3, is one filed by a group of federalism scholars, all of whom have some connection to Cato and/or are generally sympathetic to the positions we take at the Center for Constitutional Studies. As Dale Carpenter puts it on the Volokh Conspiracy blog:

Today I’m proud to join three of my co-Conspirators — Jonathan Adler, Randy Barnett, and Ilya Somin — as well as Ernie Young and Lynn Baker in filing an amicus brief in United States v. Windsor arguing that DOMA Section 3 is unconstitutional. While this conclusion is shared by 69% of constitutional law professors around the country, our route to that end is probably not as widely shared.

Our view is that Section 3 fails equal protection review for a reason quite distinct from the standard approaches relying on heightened-scrutiny analysis.  Whatever else may be its constitutional defects, Section 3 is not a constitutional exercise of any enumerated federal power.  It is also not a “necessary and proper” measure to carry into execution any of Congress’s enumerated powers.  Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states.  The federal government claims a hitherto unknown and sweeping power to determine marital and family status.  While Congress has not (yet?) claimed a statutory authority to bar states from recognizing specific marriages, it has greatly complicated and burdened their police power to do so through the enforcement of DOMA. It may well be that Congress has authority to limit access to specific federal benefits otherwise available to validly married people.  But Section 3, as an across-the-board enactment untethered to any specific power, is not plainly adapted to serve any “legitimate” interest of the federal government.

This may be an appealing argument for those on the Court who take federalism seriously and have a problem with Section 3 but may not be ready to extend the constitutional right to marry to same-sex couples. Coincidentally, the justice most likely to fall into that category is Anthony Kennedy—who will almost certainly be the swing vote in these cases—but the four “conservative” justices could also sign on to something like this even as they vehemently reject the broader constitutional argument in Hollingsworth v. Perry (the Prop 8 case) or in future cases challenging state denials of marriage licenses.  The four “liberal” justices, meanwhile, don’t care about limiting federal power through constitutional structure, but will presumably vote to strike down Section 3 on equal protection grounds.

Indeed, as I wrote in December, “I could see an opinion stating that marriage is an issue that our federal system leaves to the states and the federal government has to respect each state’s definition of it in granting benefits based on that status. That would mean that federal benefits would operate differently in different states, but so be it; gay married couples would have an incentive to live in the growing number of states that recognize their relationships.”

This federalism argument may ultimately be too clever because the federal government certainly does have the power to define the terms in its statutes, which would collapse the issue in Windsor back to whether the restriction on DOMA’s definition of marriage survives equal protection analysis (on which see Cato’s brief). It would also probably be a mere way-station on the road to full marriage equality, becoming increasingly academic as more states allow same-sex marriage. But, as I said, it’s more likely to resonate with certain members of the Court—and could have the potentially more important benefit of strengthening federalism in other areas of policy.

It would also mean the striking down of arguably the most signficiant federal law on federalism grounds in the modern era. We shall see.