The Center for American Progress is not the only group laying into the President for his support of a constitutional amendment banning same-sex marriage, up for discussion in Congress this week. A new report by Dale Carpenter of the libertarian Cato Institute—tellingly titled, “The Federal Marriage Amendment: Unnecessary, Anti-Federalist, and Anti-Democratic”—also takes a scathing, 20-page swipe at the amendment.
His reasons for opposing the amendment are ones that even many opponents of gay marriage might support. For Carpenter, a law professor at the University of Minnesota Law School, the central issue at stake is the protection of federalism, the principle by which certain areas of law are relegated to state control. Marriage law has always been one such area—and as Carpenter shows, that tradition has caused none of the “confusion and chaos” that FMA proponents think divergent state policies on same-sex marriage might.
Carpenter is not alone among conservatives in arguing that FMA undermines state autonomy. But his more salient point is actually a lot grimmer: for all the panicky talk of impending gay weddings across the country, none of the restrictions on same-sex marriage currently on the books in the United States are likely to change anytime soon. At present, 44 states have already prohibited same-sex marriage, 18 of them through their own constitutional amendments.
Supporters of the President’s strict definition of “the most fundamental institution of civilization” have been whipped into a frenzy by baseless speculation. They argue that a veritable pandemic of same-sex marriage legalizations could result if just a few states legalized the practice. But this isn’t likely to happen. State courts often do consider other states’ rulings on a subject, Carpenter says, but “the lone state or few states to recognize same-sex marriage will hold the minority view for a long time.” And though, as President Bush said in his speech yesterday, lawsuits challenging the constitutionality of same-sex marriage bans are pending in several states, none are likely to succeed. Even if they did, at the present rate, a higher court would almost certainly overturn them. The FMA, in other words, would likely remain redundant for quite some time.
