Two conservative pundits came out this weekend against the Federal Marriage Amendment. George F. Will (for whom I've got a lot of respect) and Jonah Goldberg (who I generally refer to as "a poor man's P. J. O'Rourke") both argue that the consequences of homosexual marriage are essentially unknowable, but that a constitutional amendment is a dangerous thing unsuitable to such an issue.

I'd like to agree with them, but to me, the FMA serves a pretty pragmatic purpose in the game theory that is the separation of powers. For quite a while, certainly long before Roe v. Wade, the judiciary has taken upon itself social re-engineering through a massive expansion of the language of the Constitution. This has been successful largely because the early injustices which it righted in Brown v. Board of Education or Loving v. Virginia were an blight upon the national honour, and gave the movement a certain credibility. And so for over thirty years, issue after issue has been taken from the sphere of politics and placed within the exclusive domain of constitutional interpretation. Meanwhile, every federal court nomination becomes a political battleground, as it properly should be when judges take an active role in politics.

Against this background, the FMA is a game-theory penalty, the single thing which an advocate of judicial legislation should fear: that if one pushes just a bit too far, the gains one hoped for are annihilated by a popular tide. No matter how many presidents change, or how many justices may struggle, or how many law professors pontificate, an amendment places the issue out of their reach. Passage of the FMA thus makes the next judicial 'reinterpretation' of the Constitution that little less likely, the next act of overreach a little more dangerous for the powers in black robes.

Indeed, this is a particularly good point to stand against the tide of judicial activism. Because while Andrew Sullivan says today that he is all for federalism, and while the New York Times and the Washington Post have discovered a new found and convenient love of state's rights, does anyone question that once Goodridge is settled law, the next statute for the Equal Protection chop is the Defense of Marriage Act? (And how long will Sullivan or the two great newspapers wait before annulling this particular marriage of convenience?)

Of course, the troubling downside is that this particular balancing of the governmental powers would fall on the backs of homosexual couples who wish to be married. Believe it or not, I already tend to be convinced of the merits of homosexual marriage, and enjoy listening to those who take the views of their opponents seriously. But at present, thoughtful conservatives should take the view that supporting the FMA tilts the balance back in favor of legislatures over judges, of persuasion over legal pronouncement. If one must draw a line in the procedural sand, this is as good a place as any, as perilous as it may seem to Will, or as contradictory as it might appear to Goldberg.