There is a current trend in American politics at both the state and federal level that I find very frightening. It involves changing or manipulating the procedures of government in order to bypass protections for minorities. Our system is brilliantly designed to enact the will of the majority while at the same time restricting the tyranny of the majority. The two best examples of efforts to undermine this design are constitutional amendments instead of laws and the removal of the filibuster in the Senate.
The most noteworthy constitutional amendment is the Federal Marriage Amendment recently reintroduced in both houses of Congress. Similar amendments on a variety of subjects from tort reform to prayer in schools have been introduced recently at the state level. Amendments aren’t new but they have recently sparked in popularity after decades of court decisions that provided reproductive rights and took away segregation and prayer in schools. Those supporting the FMA use the term ‘activist judges’ as a rhetorical device. To them, judicial activism is a threat to democracy because it overrides the will of the people. However, in our system of government that is the whole reason we have judicial review. If the majority passes a law that violates the rights of a minority it is a judicial branch’s job to overturn that law.
THE FMA IS NOT A GAY ISSUE
The FMA has nothing to do with gay, straight, Christian, non-Christian, morals… These buzzwords often frame the debate in ‘gay terms’ meaning one should oppose the amendment because of a belief in equal treatment for gay Americans. In fact, the FMA affects a lot more people than gays. The wording of the FMA is a follows:
Marriage in the United States
shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups. [emphasis added]
This amendment if passed would not just prevent gay marriage but would also radically change decades of law and legal precedents regarding benefits, rights, and protections for straight single people, cohabitating couples, and their children. Note the phrasing ‘legal incidents thereof.’ That’s code for a lot of protections currently enjoyed by unmarried people gay and straight. It would take away the ability of private companies to offer health insurance to domestic partners or local governments to design their own discrimination laws. Note the phrasing 'any state... law.'
Currently many companies allow the cohabitating partner and children of an unmarried employee to be covered by the company’s insurance or allow single people to designate a non-relative as a benefactor in a life insurance policy. Tax law allows an adult to claim a non-biological child as a dependent as long as the child lives in the household even if the adult is not married to the child’s biological parent. All this, and hundreds of examples like them, would be negated and redesigned if this amendment were passed.
The amendment is not only about gay marriage. It’s about a right to privacy, a right for private companies to decide their own benefits policy, a freedom of association, and a right for individuals to decide for themselves the type of relationships to have and the parameters for those relationships. Of all the parties affected by such an agenda, gay people are the easiest targets. That’s why those that support it keep talking about gays even though the law restricts benefits for ALL unmarried people. Note the phrasing ‘unmarried couples or groups.’ That’s a lot of people. Saying that the amendment would affect laws for all unmarried people is not alarmist hyperbole or conspiracy theory. It is the stated agenda of those that support it. They see married heterosexual couples with children as ideal - and they have every right to that opinion. They also seek to change the legal system so that only that ideal is recognized or encouraged. Passing laws that do that would never work. So, they are forced to whip up fear about a threat to the institution of marriage and fabricate a crisis called ‘judicial activism’ in order to pass an amendment that would not be subject to judicial review.
JUDICIAL ACTIVISM IS A MISLEADING RHETORICAL DEVICE
After WWII there was a lot of debate among the allies about what to do with the judges of the Third Reich. It was easy to prosecute leaders who carried out crimes against humanity but questionable whether judges could be held accountable. After all, they were just interpreting laws on the books and preserving the will of the majority. The Jews were not suddenly sent to death camps one day. It was a slow process of gradually taking away their rights and trending toward the Holocaust. Each step could somehow be connected to a powerful government which in some way reflected the will of a majority of Germans but at the same time violated the human rights of the Jews. The judges were held accountable after WWII because it was their job to protect the rights of minorities regardless of what the government tried to do to them.
I make this extreme point not to equate gay Americans to Jews under Hitler but to show that the function of the judiciary is to evaluate laws based on principles and to sometimes negate law even if passed by a majority. Some argue that ‘judicial activism’ is threatening to democracy. [example] What they want to do is ram their agenda through Congress and not have that agenda be checked by any other branch of government. Having a system of coequal branches of government that check each other is part and parcel to a democratic system that values individual liberties. Efforts to minimize the power of the judicial branch pose more of a threat to liberal democracy.
ENDING THE FILIBUSTER ALSO TAKES AWAY MINORITY RIGHTS
Not only do some want to bypass judicial review, they also want to mold the judiciary to their liking. There is support now for the majority party in Congress to do away with 220 years worth of rules in the Senate and take away the filibuster. [One link in support of this, one link against it] That means any judicial nominee would need just a simple majority to be appointed. Since the Republicans are the majority now they could easily stack the judiciary with like minded judges sympathetic their priorities. It would also make the opposition party in Congress essentially powerless.
Another great aspect of our system is the fact that every citizen has representation in Congress – not just those that support the majority party. The majority has more power but the minority is represented by those that can restrict that majority. By taking away tools like the filibuster the representation of those that don’t support the majority party disappears. It is also a short-minded strategy as majority power in Congress changes hands pretty easily. Without the filibuster a judicial nominee would not have to have broad bi-partisan appeal. Judges would just be politicians that pander to whatever party has the majority. Taking away the filibuster would make judges more politically active, not less.
RESTRICTIONS ON LEGISLATIVE POWERS ARE GOOD THINGS
Supporters of the FMA and ending the filibuster are frustrated that they cannot push judicial nominees through Congress quickly and the laws they get passed, such as restrictions on abortion, are overturned by judges. They want the 10 Commandments displayed, prayer in schools, media censorship, and abortion outlawed - all objectives they can't achieve under current legal precedent. What to do? Pass amendments and stack the bench. But the speed bumps that slow government down and make it hard to get something through Congress or kill laws once they're passed are intentional and beneficial.
Checks in our system keep the government of a frenzied fickle majority from passing laws based on whatever hysteria is in vogue. Currently the trend is hand wringing about moral decay and threats to marriage. But in the early 90’s ‘Save the Planet’ was an equally trendy political wave. Communists were today’s gay cartoon characters during the McCarthy error. Rules shouldn't be changed every time the American people fire up a new witch hunt.
Opposing things like the FMA isn’t an assertion of gay rights. It is a vote of confidence in our system of government and all three of its branches. The debate over the FMA and the senate filibuster needs to move out of its ideological ramblings and focus more on procedure and function. In that vein I have included reasoning below that ignores the current terms of debate and provides alternative sound bites.
Reasons to support the filibuster and oppose the FMA that have nothing to do with religion, sexual orientation, or any other specific group identifier:
· The core document of the federal government should not be changed to dictate social policy no matter who that social policy benefits.
· Although conservatives often claim a monopoly on patriotism, true patriotism goes beyond just supporting America
by name and includes supporting our unique system of government. Efforts to gain power by bypassing checks and balances devalue American institutions and traditions.
· All laws should be subject to judicial review. Using the amending process to forward policy over procedure prevents constitutional protections.
· All citizens should be represented by government, not just those that support the majority party. Taking away the filibuster takes away representation for those that oppose the majority party.
· The FMA is so broadly worded that it would reorder decades of laws and legal precedents. Framing the debate over the FMA as a gay issue is intellectually dishonest because it does not take into account the full scope of the amendment.
· The FMA restricts rights, protections and benefits to only married couples. Phrasing that excludes ALL legal incidents thereof for ALL unmarried couples or groups creates a new social caste based solely on gender and marital status.
· All people should have the freedom to choose who they associate with and the nature of those relationships. Such decisions are too personal and too private to be covered by broad federal law or an amendment to the federal constitution.
· All private companies, local governments and their entities should have the ability to determine their own policies regarding contracts, benefits, privileges, and protections. Augmenting the federal constitution to create one-size-fits-all social policy violates traditions of limited government and federalism as well as economic liberty and self determination.