Supporters of a constitutional amendment to keep the courts from legalizing homosexual marriage, stunned by poor support in the recent Senate vote, are beginning a campaign for a constitutional convention.
The provision of the Constitution's Article V requiring such a convention if called by two-thirds of the state legislatures has never been used. Fear of throwing the Constitution open to general amendment has overridden support for specific issues. However, key advocates of barring gay marriages believe the constitutional convention strategy will keep the issue alive.
A recent memo circulated within the anti-gay marriage coalition lists Princeton Professor Robby George, Tony Perkins and Chuck Donovan of the Family Research Council, and conservative financial consultant Frank Cannon as favoring the strategy.
This is a terrible idea.
I must confess that I'm not completely sold on the advisability of the Federal Marriage Amendment. As usual, Ann Coulter said it best. This gem appears in her best column ever, "Supreme Court Opinions Not Private Enough." (Read it all now.)
In response to the court's sodomy ruling last term, conservatives are talking about passing a constitutional amendment defining marriage as between a man and a woman. It's really touching how conservatives keep trying to figure out what constitutional mechanisms are available to force the courts to acknowledge the existence of the Constitution. But what is the point of a constitutional amendment when judges won't read the Constitution we already have? What will the amendment say? "OK, no fooling around--we really mean it this time!
That doesn't mean that the FMA would necessarily be a bad idea. But it misses the point. Amending the Constitution implies that there is something wrong with it. But there isn't. The problem is judges who intentionally violate it. Logically, we should focus on the judges. No constitutional mechanism will suffice while judges control the Constitution.
Conservatives seem to instinctively choose the hardest way of doing something. Amending the Constitution on any contentious issue is virtually impossible. Even when a proposed amendment has the support of both parties, it can still be defeated, as was the Equal Rights Amendment.
Even if the FMA is a good idea, though, a constitutional convention is still a horrible one. The constitutional convention (con con) is an idea that keeps popping up on the right. In the 80s, it was the balanced budget amendment. In the 90s, it was term limits.
A con con has never happened since the original one. A con con would open up the whole constitution to amendment. The standard for ratifying an amendment could even be changed. Our nation has lost much of the understanding it once had of its founding principles. The result would almost inevitably worse.
There is a better way. The right answer is to stop the abuse of judicial power by taking away that power. Specifically, Congress can use its Article III, Section 2 power to strip the courts of jurisdiction over specific issues, including marriage. This addresses the problem directly and requires a lower threshold for approval (50, or 60 with a filibuster). It also focuses on the issue directly on judicial abuse and removes excuses of the opponents of marriage. (More information is available here.)
Conservatives must zealously defend the Constitution while protecting marriage.