Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, May 26, 2006

Kmiec responds

Doug Kmiec offers this response to my criticism of his op-ed supporting the federal marriage amendment:

On FOX News Sunday recently with Chris Wallace, John McCain said something similar, though less well anchored in the Catholic tradition. McCain proclaimed his opposition to the amendment, explaining it as deference to the states, and secondarily, on the ground that it is legally unnecessary. There are reasons -- unfortunately -- to question both propositions.

McCain rightly wants his home state of "Arizona [to] make [its own] decisions about the status of marriage . . . just as the people in Massachusetts and other states should make their decisions." Fair enough, local decision making is a core principle of federalism (and Catholic subsidiarity), but judges, not the people in local or even state-wide communities, seem to be getting the last word. By contrast, the very process of considering a constitutional amendment returns the issue to the people. Before a single word can be added to our federal charter, three-fourths of the states must agree. So while I agree with you that the perfect case would have been "bottom-up" without any federal intervention, I think four justices in Massachusetts and regrettably more to come have no intention of letting the people back into the conversation.  The proponents of the amendment are merely asking for Congress - by a two-thirds vote of both houses - to let the people in their individual states engage in civil discourse and decide for themselves.

As for legal necessity, Senator McCain is under the misimpression that the Massachusetts mistake can be confined to the Bay state. That is unlikely. Similar litigation by gay activists from New Jersey to California is underway. If the activists prevail even in one or two venues, same-sex couples will migrate in greater numbers and press the courts of other states to recognize these judicially-invented licenses, and that, too, is another potential blow to localism. The Constitution's "Full, Faith and Credit" Clause was recently construed to require something comparable when an Oklahoma federal court invalidated a state constitutional amendment restricting recognition of out of state gay adoption. Congress in the 1990s passed the Defense of Marriage Act to allow individual states to maintain traditional marriage as a matter of public policy, but the federal judge in Oklahoma at least held there is no "roving public policy exception" to another state's legal judgments. The FFC clause is enigmatic and under-interpreted on this question, and, in my judgment, it simply cannot be counted on to protect the local voice.

Senator McCain is a thoughtful man, and I bet he, like you, is sincere when he raises the associational good of deferring to local discernment.  Most in opposition to the federal marriage amendment, however, do it on a less reasoned basis; typically, out of a mistaken "live and let live" toleration. The witness of the Catholic faith, I believe, requires more of us.  Subsidiarity does not deny the occasional help of the higher order, and this is one of those times. There is nothing intolerant in joining with one's neighbors assembled in state ratifying conventions -- a pretty decent approximation of the "marketplace of ideas" -- for the purpose of affirming, with the Bishops of the Church, that marriage is a faithful, exclusive, and lifelong union between one man and one woman, joined as husband and wife.



Vischer, Rob | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Kmiec responds :