Two BYU political science professors denounce the proposed Federal Marriage Amendment. One BYU law professor defends it. Both are solid expressions of their respective points of view. Responding to them will, of course, turn this thread into a debate over the nature of marriage–but before that happens, I’d like to point out that marriage itself plays almost no role in their actual claims.
Wilkins repeats over and over how, in his view, the Supreme Court’s inovcation of the “meaning of life” and “mysteries of the universe” in Lawrence v. Texas has allowed America’s judiciary to completely ignore the “history, traditions and actual practices of the American people”; in the face of this judicial usurpation, a constitutional amendment is our only recourse. Wilkins never explains what those traditions and actual practices are, and in a sense it doesn’t really matter. His entire argument rests upon the idea that recent judicial activism has put the constitutional order itself in peril: that, thanks to “the judges” and “the courts,” the ordinary and proper understanding of the role of the Constitution must be thrown out the window. Wilkins concludes: “I wish with all my heart that it was not necessary to even think about putting marriage in the Constitution….By placing marriage in the Constitution, the judges…have done violence to the very idea of a written Constitution, have eroded legislative power, and have significantly expanded their own power.” Direct constitutional action is therefore the only route remaining to defenders of original system. It isn’t difficult to see that Wilkins’s rhetoric is perfectly compatible with lamentations about the “end of democracy” associated with other conservative thinkers; substitute abortion for marriage, and Wilkins’s essay would have fit right in.
Why don’t Richard Davis and Byron Daynes see this threat? Because they clearly don’t; for them, the Constitution is “in play,” an important but still just one element of the polity itself, in a way very different from Wilkins’s apparent presumption that the polity is defined by its constitution. (This is made explicit when Daynes and Davis argue that the Constitution should “reflect our most basic structure and principles of government,” which of course means that they see the American polity as involving governing “structures and principles” which exist apart from and presumably independent of any specific constitutional text.) Hence in the face of the presumed “usurpation” of power by the judiciary they see simply another iteration in the ongoing struggle over the sources and forms of power in the polity overall, a struggle as old as Thomas Jefferson and John Marshall, or Dwight Eisenhower and Earl Warren. Davis and Daynes see the Federal Marriage Amendment as an attempt to make social policy a part of our constitutional order; that is, for them, it really is about same-sex marriage, and in their view weaving any given policy into the basic elements of the polity itself is a bad idea (as the America experience with Prohibition supposedly demonstrates). For Wilkins, on the other hand, the actual content of the policy is secondary to, or at least at best merely equal to, the legal concern for constitutional preservation. Reading these two essays side by side makes me wonder why Wilkins isn’t doing like some strict constructionists and push for a legislative act which would reign in judicial power. I’ve no idea what chance of success such an approach might have, but if enacted it would certainly satisfy Wilkins’s stated concerns, and without all the of vaguely discomforting “the judges made me do it” rhetoric. Moreover, maybe he’d even have political scientists like Daynes and Davis on his side.
Of course, I think I know why Wilkins wouldn’t take such a route–because for him, the U.S. Constitution is and should be emblematic of a certain kind of moral order. In his view, I suspect, rectifying the actions of judges who disregard the (again, undefined) “history, traditions and actual practices” in regards to marriage and sexuality would be seen as a matter of killing two birds with one stone, a binding of the polity and the polity’s legal order to a particular moral scheme. As one who has sympathy for certain varieties of religious establishment and believes in the substantiality (and appropriateness) of certain forms of civic religion, I admire what I take to be Wilkins’s holistic approach. But I don’t agree with it, and don’t support it, simply because I think (as a Mormon, as well as for other reasons), that the way he and other defenders of the FMA set up this battle simply doesn’t, for better or worse (very likely worse), serve America’s history, traditions, and practices of marriage and sexuality nearly as well as they like to imagine it does.