Tremendous Findlaw Article
Wow. A truly impressive Findlaw piece from Professor Dorf analyzing the arguments against the Federal Marriage Amendment. While I disagree with him on the idea that the proposed amendment would make civil unions impossible to an appropriately creative legislature, he does a fine job of knocking down the straw man arguments being proposed elsewhere and boiling the argument down to where it lies: the FMA is wrong if you think same-sex marriage is right. Conversely, though he doesn't state it, I'd say the FMA is right if you think same-sex marriage is wrong.
Read the piece, but the three major arguments he defangs are:
- The FMA is inconsistent with States Rights
- Constitutional Amendments should not be used to shrink individual rights
- This isn't the kind of thing you do by Amendment
My comments on some of the lesser points of the article are below, but really, they're not important, and mostly for my benefit. (This is a diary, after all.) It's a good article. You should read it.
I actually think Dorf gives short shrift to the arguments of religious opponents: many religious people do not see religious and civil marriages as distinct, but that civil marriage piggy-backs on the older, religious institution. (People do not get married twice, in two ceremonies, after all--priests conduct weddings that have legal force.) And he doesn't mention the idea that you could square this particular circle by making all civil 'marriages' into 'unions' and getting the state out of the marriage business completely. (After all, if the two institutions are distinct, what's in a name?) Still, neither of those are criticisms of quickly-referenced side points.
Lastly, I think he reads the desires of homosexuals to get married as more uniform than is warranted. While some homosexuals are 'paying homage' to the institution of marriage as he suggests, many others want same-sex marriage to be recognized precisely because it changes the nature of an institution that has normally carried a religious as well as a temporal meaning. Marriage was the institution in which the act of sexual congress between a man and a woman was sanctified, and homosexual activity was traditionally considered to be excluded from that.  State recognition of 'marriage' (at least in the eyes of those who don't consider the institutions completely distinct--and the lesbian priest who came to speak to us at Columbia last term regarding the issue didn't seem to consider them so) would implicitly serve as a normative gesture, indicating that this particular religious interpretation of marriage was 'fringe' and that the civil definition was what was 'acceptable.' (Hence my preference for just abandoning civil marriage for civil unions: it doesn't have the likely consequence of deliberately undermining the teachings of a religion.)  Not only don't religious people all think the twin institutions of which Dorf speaks are separable, but I doubt all homosexuals wanting to get married do either.
But whatever these reservations--and I'm sure given a greater word limit Professor Dorf would have addressed them, or fairly stated that the religious dimension was outside the boundaries of his argument--the piece is a must-read for its determination to draw the battle lines where they belong: on whether or not homosexual marriage should be recognized by the state. He's done a great service by running a scythe through the straw men.
 Dorf writes that "Apparently, people who oppose same-sex marriage think that loving committed relationships among gays and lesbians are so different in kind from loving committed relationships among heterosexuals, that dignifying the former with the term 'marriage' makes a mockery of heterosexual marriage." Implicit in this statement is the concept that love, and a commitment to one's partner based upon that love, are the foundation for which marriage was put in place, or even vaguely related. I'm reminded that this assumption--at least with regards to the religious institution--is one that C.S. Lewis spends some time debunking in many of his works, including The Screwtape Letters, which for obvious reasons I take every opportunity to mention here.