By now you know that George will has come out in opposition to the Federal Marriage Amendment – something I’m still not sure of and on which I am wavering back and forth. His column is here. In part, George Will states that
Amending the Constitution to define marriage as between a man and a woman would be unwise for two reasons. Constitutionalizing social policy is generally a misuse of fundamental law. And it would be especially imprudent to end state responsibility for marriage law at a moment when we require evidence of the sort that can be generated by allowing the states to be laboratories of social policy.
Is that not, however, what the courts have already done in reverse? Haven’t the courts “amend[ed] the Constitution to define marriage as between” any two consenting adults regardless of gender — despite thousands of years of law and religion holding otherwise? Haven’t the courts been “constitutionalizing social policy” since, at least, the 70’s?
It would be “especially imprudent to end state responsiblity for marriage law,” but it seems a bit late for that. The courts have already constitutionalized social policy by interjecting themselves into the debate. I have no doubt that the Defense of Marriage Act will be struck down by the Courts and this 4-3 ruling in Massachusetts will become the law of all 50 states. It will not have been done democratically — but by fiat. It will be impossible to “allow the states to be laboratories of social policy” when they will all be forced to recognize gay marriage.
At least the FMA will be decided in a Constitutional and democratic process. If 2/3 of each house of Congress and 3/4 of the states agree the FMA is okay, couldn’t that be seen, at a minimum, as the people democratically agreeing with George Will that social policy should not be constitutionalized, as the courts have chosen to do?
I hope Ramesh Ponnuru weighs in on Will’s column.