Economist Lex Article on US Culture Wars

While the article in the Economist concerning the pitfalls of a gay marriage prohibition amendment ignores a key point, the point about undermining federalism has merit.

Of course, Frist and the Republican right are trying to mobilize and activate their base, which is the point ignored by the Economist. The Republicans are hardly more loosey-goosey than Democrats when it comes to betraying their underlying platforms [as any glance at the GWB budget deficit demonstrates]. But a motion for an anti-gay amendment is not going to go far, as the article shows. Then the editorial goes on to make a more salient point:

Overreach is also foolish because it exposes conservatives as fair-weather federalists. The strongest conservative argument against abortion is that the Supreme Court overstepped the mark by imposing a single solution on a diverse country; but since then the Republicans have used their temporary dominance in Washington to trample on states' rights.

Such overbearing behaviour is not a monopoly of the right. The American left has long imposed its values on a divided country through the courts—from the abolition of school prayer to civil rights for blacks to the legalisation of abortion. And many gay activists regard themselves as exactly like blacks—oppressed citizens who are being denied their full constitutional rights because of social prejudice. One Californian same-sex couple has a marriage-rights case pending before the Ninth Circuit Court of Appeals. In May 2005 a federal court in Nebraska overturned the state's constitutional amendment banning gay marriage, an amendment that passed with more than 70% of the vote.

Leave judges out of it
The strategy of using federal courts is a disaster in the making—a guarantee that America will be divided over gay marriage just as deeply as it is over abortion. Some gay activists argue that the best way to get around this problem is to focus on state courts, introducing gay marriage in liberal states like Massachusetts and avoiding conservative ones. But an even better way is to focus on legislatures. The best model for gay-rights activists should be California, where both houses approved a gay-rights bill without pressure from the courts, rather than Massachusetts, where marriage rights were conjured up by a handful of judges. Activists may complain that the legislative road is strewn with landmines: Arnold Schwarzenegger vetoed the California law. But surely these mines are less lethal than those on the judicial road, as supporters of abortion rights have discovered. Activists may also complain that majorities of people are against marriage rights. But opinion is moving in their direction: the proportion of people who support gay marriage has risen by 12 points to 39% since 1996, according to Gallup.

Judicial activism as practiced by Massachusetts and the Bolshevik 9th Circuit in San Francisco should be curtailed, that is the one certainty in the political minefields across the country. But the fact is that hypothetically, if I am correct, even in the long-shot event of a Gay-Marriage Prohibition Amendment, the SCOTUS could overrulle it as unconstitutional. [Not that that would occur with the Roberts court now that Alito is on board.]

In that case, Andrew Jackson might resurrect himself, as when he overruled Marshall "The Court has made its decision, now let it enforce it."