ON THE FMA, KRISTOL AND THE NECONS HIT ROCK BOTTUM


While the neocon's foreign policy agenda is highly divisive, it must be respected for at least being clearly thought-out articulation of core ideological principles. On the other hand, what passes for the neocon's domestic agenda continues to be pretty much a knee-jerk endorsement of GOP talking points. This intellectual bankruptcy hits a new low with the
Weekly Standard's endorsement of the FMA. First, Kristol and Joseph Bottum don't even to bother trying to justify why they are against homosexual marriage itself - not even the standard throw away line about how it undermines heterosexual marriage. Worse however, is their sloppy analysis of the FMA itself. The argument for why the FMA doesn't ban civil unions is ipsi dixit - it doesn't because the FMA's sponsors say so (to certain audiences). Let's look at the second sentence for a moment

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

If the FMA doesn't rule out civil unions, than what on earth does the phrase "or the legal incidents thereof" supposed to be doing? If the goal was only to address formal marriage, it would use the conjunction would be "and."


Kristol and Bottum, at least admit that the FMA stretches out to encompass civil unions, but then make the absurd argument that the FMA "merely requires them [legislatures] to specify the benefits they wish to give to relationships outside marriage--which is what civil-union legislation ought to do in the first place."


That can't be the case, however if we are to give any weight to the plain meaning of the text. The FMA plainly includes State laws in the category that cannot be construed to confer the legal incidents of marriage on unmarried groups. There is no exception made for explicit grants of "the legal incidents" of marriage to unmarried couples by state legislatures. Thus, say a state passes a civil union law that includes a provison that states "partners in civil unions can be named dependent's on the other partner's health insurance." Any state court that interpreted that law to mean what the plain language said would be construing the law to rquire health insurance copanies to confer a legal incident of marriage upon a non-married couple - and thus violating the FMA.


Even were the FMA written in a way that permitted legislatively created civil unions, it would still be an abhorrent attack on federalism, one that should make even the staunchest opponent of the Court's new federalism jurisprudence shudder (and all the more so a stanuch defenders of it, as the neocons are). The FMA, on the issue of gay marriage, effectively overrides ever states separation of powers and constitutional admendment process. Not only do the people of Massachusetts not get to decide whether or not to have gay marriage, they are also prevented from deciding whether or not they prefer for the decision to be decided judicially or legislatively. State Judicial decision that are radically outside the democratic consensus can be addressed - through state Constitutional amendments; and State courts that consisently impose radically anti-majoritarian views on their public can also be addressed - through the judicial appointments and/or election process.


But in a way, I'm more relieved than concerned by the neocons decision to hop on the FMA bandwagon Were the neocons to approach domestic policy as something more than partisan hacks, they may have helped craft a more narrowly tailored approach than the FMA that had a better chance of success - and that would be far worse.