Ann Coulter made an observation in her latest column on the effectiveness of a marriage amendment:

“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!”“

Even so, I’m afraid I have to agree that the likelihood getting such an amendment proposed by 2/3 of both houses of Congress (or by 2/3 of State legislatures) and getting 3/4 of the States to ratify is extremely low in today’s climate. It’s worth a fight, but prepare for the worst.

It would be more likely (but not by much) to get an amendment that would at least confirm a delimitation of the Full Faith and Credit Clause so as not to require one State to acknowledge a homosexual union sanctioned by another. I’m afraid this is precisely where the Federal Defense of Marriage Act finds its Achilles Heel. (And I suspect President had that very thing in mind when he signed it, leaving himself to feign a pro-family stance.) This would fall short of what we really need, but would at least help contain the damage if it were all we could get.

I thought that Fleming’s position was a good one. The way I read it was that he was against a Federal solution because A) an amendment would never pass because too many people in too many states vote for immoral leaders and B) any Congressional effort is useless against the Courts.

And if Federal solutions are doomed to failure, the best defense for reasonably moral states that wish to protect themselves from the actions of more amoral states is a spirited defense of state’s rights.

Mr. Auster has several times asked questions along the lines of ‘Do you think that the federal government should permit something like slavery if a state wished for the institution?’ And of course I do not want slavery anywhere in the world. But if this is a question of where power should reside, my fear is that the federal government might impose systems of near equal immorality to slavery on states who would otherwise reject them. To me, it is worse that the power for such evils rests with the federal government than that it rests with individual states. State power is a guarantee of liberty more than a threat to liberty.

In the first paragraph of his comment, Thrasymachus merely echoes Fleming’s pointless defeatism, and then he repeats Fleming’s key misconception about the amendment, which I’ve already dealt with. He should read my article more carefully.

In thinking further on the effectiveness of a constitutional amendment, I had a depressing realization. If anyone thinks that courts couldn’t subvert an actual amendment, then consider this.

I recalled reading of an incident in the late 70’s where Otto Moulton addressed a NORML conference and insisted that our international treaty commitments, in this case the Single Convention Treaty on Narcotics, supersede even the Bill of Rights.

There it is. We’ve already seen how the Supreme Court has been citing international law — or even picking and choosing laws and precedents from specific foreign countries — in justifying their decisions. This isn’t new. A federal court was appealing to the U.N. Declaration of Rights as far back as the early 60’s in cases involving State anti-miscegenation laws.

Now if this country were to become party to some kind of international treaty that granted recognition to homosexual unions — and for all I know we may be already by virtue of some U.N. tentacle — and if this were in conflict with the marriage amendment, then the Supreme Court would certain assign itself the role of determining which of the 2 were controlling.

And which one would that likely be?

Also, Coulter’s dismissive argument about the amendment is wrong and defeatist. If there were a federal constitutional amendment defining marriage as the union of one man and one woman, there is no way that any Court could say otherwise.

I say, let’s go for it. There is still a window of opportunity, polling indicates the majority of Americans still do not favor gay marriage. The fight would have the virtue of bringing the subject completely into the open and forcing politicians to choose sides. It would mean that our side has finally taken the offensive for a change, rather than continually moving backwards and redrawing lines in the sand.

A agree with Mr. Wall. We should definitely give it our very best effort. We have a potential gain and little if anything to lose. As to the ability of Federal courts to nullify amendments, I’m afraid that has already happened. The 14th amendment, guaranteeing “equal protection of the laws,” was nullified this summer by the Supreme Court in Grutter. The “compelling state interest” of “diversity” trumps equal protection.

Here’s the bit regarding treaties in the Constitution (Article VI, Paragraph 2):

“The Constitution, and the Laws of the United States which shall be made in the Persuance thereof; and all Treaties made, and which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

I think this means that treaties entered into and ratified by the United States have the force of law equal to that of the constitution: they trump state laws. However, there are leftist judges and legal activists out there who take the position that treaties trump all federal laws as well - potentially the constitution itself. Thus, it is very important that any treaties be given extreme scrutiny. They aren’t, of course, and the electorate seems completely clueless about this provision. It is entirely possible that we’ve already ratified some treaty that would in effect demolish any state laws against homosexual marriage. How would we even know? The only person resident in Congress in the past 50-plus years that had any sort of concern for the destruction of sovereignty via treaties was Jesse Helms - now retired. That is why the only hope of slowing down the advance of this agenda is through a constitutional amendment.

This whole affair brings to mind an article I read about ten years ago in one of James Dobson’s magazines or newsletters. It described in detail a huge seminar that was held in England and attended by law professors, high-powered attorneys, and judges from around the Western world. The whole thrust of the seminar was how to advance the homosexualist agenda through the courts. I wish I could locate this report, as it all seems to be coming to pass very much as decribed in the article.

“The Constitution, and the Laws of the United States which shall be made in the Persuance thereof; and all Treaties made, and which shall be made, under the Authority of the United States, shall be the supreme Law of the Land …”

There’s an ambiguity in this passage I had never noticed before. I had always associated “supreme law of the land” with just the Constitution, meaning the Constitution is higher than federal laws. But this passage puts the Constitution, all federal laws, and all treaties on the same plane as the “supreme law of the land.” I don’t know what this means in practice. But, a reassuring point, in any case it does not suggest that a treaty would supercede a Constitutional provision.

Mr. Auster perhaps gave thought to the question of treaty obligations vs. our own constitutional provisions when he was writing his NewsMax series on the U.N. Global Gun Control Conference, since treaties are also the Supreme Law of the Land under Article VI.

If we could actually get a marriage amendment passed, it occurs to me that the next step for homosexual activists would be in the realm of political globalism, pushing for international acceptance of homosexualism. Most of them could care less about liberty or national sovereignty against their precious goal of advancing homosexuality. As a well-organized and highly motivated activistic force, this would be a very serious problem.

I agree with Mr. Wall that we should certainly make the effort. I believe that even if we lose, we must go down fighting. As a Christian, and as a Western man, nothing less is acceptable.

I found the case mentioned above, Perez v. Sharp, Supreme Court of California. A concurring justice quoted from the Declaration of Independence, the Fifth and Fourteenth Amendments, and then … the Charter of the United Nations, whereup he wrote, “In the face of these authoritative pronouncements…” (He even referred to, “the supreme law of the land as found in the Declaration of Independence…” Just to show what fools these people can be.)

I would maintain that only Divine intervention can halt this trend. I agree with Mr. Auster’s take on what Thomas Fleming has said, but I think we should embrace the emphasis on “a re-Christianization of America from the grassroots up” overall which suggests. First priority, God. Second, everything we can possibly do within the political system to oppose this trend.

I didn’t see Mr. Auster’s reply before I made my last post. ;-)

The problem I see is that if you consider that the 21st Amendment superseded and nullified the 18th, then a liberal judge or justice could ‘reason’ that an international treaty provision superseded a previous constitutional provision with which it conflicted.

That’s outrageous — to think that the Senate, (not even the Senate as envisioned by the Framers, appointed by the States,) could thus amend the Constitution, which was supposed to be very hard to do. But remember the kind of people who would be making this type of decision, the kind of people who just rammed a travesty like Lawrence v. Texas down the nation’s throat.

And obviously I didn’t see Carl’s either. :-/ Good points made by him as well. The unfortunate note is struck in his statement that “the only hope of slowing down the advance of this agenda is through a constitutional amendment.”

That’s about all it would do — slow it down. And it would just move the fight to a global level. But still slowing it down is better than being steamrolled.

It’s the subsequent clause of the section from Article VI that bothers me - to wit: “and the Judges in every State shall be bound thereby, any Thing in the CONSTITUTION or Laws of any State to the Contrary notwithstanding.” (emphasis added). The could very easily be “interpreted” by leftist judges to mean that something in the constitution itself - the 2nd amendment is a good example - is trumped and overruled by some treaty that was signed by the President and ratified by the Senate. The classic interpretation would support the position that a given treaty trumps the laws and constitutions of the states themselves, which is bothersome enough on its own. But with globalists like Kennedy, O’Connor, Ginsberg, and Breyer sitting on the bench, it’s not difficult to guess how they would rule.

Carl, I think you’re misreading it: “any Thing in the CONSTITUTION or Laws of any State to the Contrary notwithstanding.” It’s the constitution or laws of a state, not the federal constitution, that is being discussed.

In the phrase Carl quotes, the word “constitution” clearly refers to State constitutions, not the Federal Constitution.

Still, Carl has really crystalized this for me, after I kind of stumbled into the point. The way the wording of Article VI is constructed, it’s almost like a self-destruct mechanism that was lurking in the background, and primed to be exploited just in time for the prophetic one-world government, when we have the justices who can make it happen.

This is almost depressing enough that I wish I ‘stayed home’ today.

It is interesting that Carl brought up Article VI of the Constitution being interpreted to make treaty laws trump the Constitution. This fear is not new. Conservatives had been worried about this for well over 50 years and that was the basis for the Bricker Amendment, the last great cause of the Old Right, which sought to limit the power treaties had over the United States. I have done a pretty good deal of research on the Bricker Amendment (and plan to do my honors thesis on it as well), and have come to the conclusion that had it passed it would have achieved nothing. The bricker Amendment is now seen as being based on isolationism, but when I looked at the major arguments in favor of it at the time, the main concern seemed to be that the UN Convention on Human Rights, the Genocide Convention etc. could be used to nullify state segregation, miscegenation, and other such laws. Just months after the Amendment was defeated by one Vote in the Senate, the Supreme Court did just that in Brown vs. Board of education without mentioning any treaties, but simply because they felt like they could do whatever they wanted to based on some trendy and bogus sociological data.

What does this have to do with the FMA? It means that the constitution does not matter to the Judges and other elites in the country and wasting time, money, and resources on a Federal Amendment is pointless. So no, the Supreme court could not “overturn” the FMA, but they could simply ignore it or somehow find a meaning that is completely contradictory to what it plainly says as they have done with the 2nd, 10th, 14th Amendments and pretty much the entire Constituton?

I happen to disagree with Fleming when he says that there is not enough opposition to gay marriage. The few states that have allowed for it, or civil unions have only achieved it throught the courts. Conservatives would be much better off focusing their efforts on impeaching the activist judges-both state and national- than wasting their time on a constitutional amendment.

Also, on a side note, I saw Howard Phillips speak this summer and he mentioned that he, as well as Phyllis Schafly, and Herb Titus, noticed language in the FMA itself that could very easily be used to at least make “civil unions” a right for homosexuals.

“Conservatives would be much better off focusing their efforts on impeaching the activist judges — both state and national — than wasting their time on a constitutional amendment.”

I agree with Mr. Epstein, and I think the point has been made here before that, in a real constitutional struggle, the legislative branch is supreme. It can remove items from the authority of the courts (Article III, Section 2); it can impeach judges; it can starve the judiciary by not funding it.

Of course, these measures will never be implemented absent the will to undertake them. So at base we are still talking about will and courage — things not exactly in abundance today.

First, a qualified defense of Thomas Fleming. His column was mis-titled, which may not be his fault. Both his reader’s question and Fleming’s answer were about a federal statute. Fleming made a token reference to an amendment, then pursued it no farther, presumably because his questioner had not asked about it. I agree with Fleming about the uselessness of a federal statute limiting marriage to the union of one man and one woman, for the reasons he gives and others well-put by contributors here. I confess I share Fleming’s pessimism about the state of America, which is not yet despair because of his faith, if I understand him, in God’s Providence.

A federal amendment restricting the definition of marriage to the permanent (at least in intention at the wedding) union of one man and one woman would be helpful, at least as a strong statement of the moral conviction of a majority of Americans about what marriage is. Because passing such an amendment would require having the majority, largely disorganized and apathetic, prevail over passionately interested and well-funded homosexualists and their allies on the Left and in the law schools, I doubt such an amendment could be ratified.

If a defense of marriage amendment were ratified, federal courts might simply ignore or deliberately misconstrue it. Since it would be an amendment recently ratified after a noisy debate, it would be harder for them to ignore than, say, the the 220+ year old Tenth Amendment. It might also be more difficult, because the purpose of the amendment would be fresh in people’s minds, for them to get away with misconstruing it. The question is what happens when a president attempts to enmesh the United States in treaties that recognize homosexual “marriage.” Ratifying such a treaty would create a conflict in federal law with the marriage amendment. The Supremacy Clause says what the supreme law of the land is, but does not establish a hierarchy among its components. Should such a conflict arise, the legal fate of marriage in the United States would rest with the U.S. Senate, which would have to decide whether or not the treaty’s conflict with the marriage amendment meant the Senate should refuse to ratify the treaty. If the Senate proceeded to ratify the conflicting treaty, I think activist judges would presume that the treaty obligation to recognize homosexual “marriage” had superseded the marriage amendment.

I wonder if the Senate would do the right thing, and refuse to ratify a treaty that contradicts the Constitution. I would not bet on it. HRS

When do Conservative attempts to reform the Constitution ever work? Remember the Bricker Amendment? The Human Life Amendment? The Flag Burning Amendment?

As long as everyone believes, and it is just a belief (although supported by the Court), that the Supreme Court is the sole authority on Constitutional law, Constitutional amendments and limiting the Court’s jurisdiction can simply be ignored by a Court interpretation. Courts across the nation commonly ignore the plain language of laws and even invent law. I am not sure people are even aware of the scope of the problem. The most prominent recent example was the Florida Supreme Court’s presidential election holding, in which the Florida court ruled that an explicit statute of limitation was merely a guide. The U.S. Supreme Court has so debased itself over many years that it no longer has any moral authority to me, which I hope leads it a massive revamping of the Court’s role. It is begging to be ignored by a strong leader. We need to try to ensure that leader is a traditionalist instead of a Clinton, who would surely ignore any holding that his base demanded ignoring.

I agree that Fleming’s faith saves him from despair, or even from pessimism in the long term. The view that things are likely to get a lot worse before they get better is probably a majority opinion among traditionalists. In October, Jim Kalb asked Turnabout readers to consider the question:

Is the total capture of the public sphere by left/liberalism less of a catastrophe than it might seem, since the public sphere is likely to become increasingly…irrelevant to how people carry on their lives?

A number of answers reflected strong short-term pessimism., e.g. this from “Matt”:

“ No, it is every bit the catastrophe that it seems. Evil is always parasitic, and Our Lord always wins in the long run. Recognition of that fact ought not inspire complacency or unwarranted optimism about the interim. “

(The thread was titled “is conservatism winning or losing badly?” and is archived at
http://jkalb.freeshell.org/tab/archives/001421.php )

Of course, even short-term pessimism carries some risk of becoming, or encouraging, defeatism.

While I’m at it, I can’t take seriously the notion that Fleming is “unpatriotic”. He is certainly an angry man and a provocateur. A notorious example:

“I respect and admire the French, who have been a far greater nation than we shall ever be, that is, if greatness means anything loftier than money and bombs.”

It would have been more judicious to write “a far greater nation than we now are”. But in any case, I think his real target here wasn’t America, but rather the arrogance and shallowness of those Americans who thought it a great expression of patriotism to call the French “surrender monkeys” and to re-name French fries “Freedom Fries”. Given Fleming’s often-expressed view that America is best understood as an extension of Europe, you can imagine how such jingoism must have angered him.

No-one suggests that Kipling was unpatriotic when he wrote of the British:

For frantic boast and foolish word
Thy mercy on thy people, Lord!

I am not a lawyer. Do not take this as legal advice.

In US law, treaties are given the same force as statutes. Thus, the treaty or statute latest in time prevails. Treaties are impotent to amend the US Constitution.

http://www.agonist.org/archives/week_2003_03_09-2003_03_15.html#000704

For example, suppose a treaty said you could not hunt ducks, but a federal statute said you could. The federal statute would control. You could hunt ducks.

I am not a lawyer. Do not take this as legal advice.

My take on the Fleming article. He blames the people for the ills of society. To be fair, he should give the people credit for being able to tackle this issue.

Fleming despairs that the people have chosen leaders that are opposed to Fleming’s ideas. It is not logically valid to say, however, that the people oppose Fleming’s ideas. This is a point based on political science. Frequently, the results of voting in democratic systems appears “irrational.” It may be that most Americans support abortion rights, but to assume that based on election results alone would be logically fallacious.

Furthermore, note that very few elected leaders formally support gay marriage. DOMA passed overwhelmingly. Paul Wellstone voted in favor of DOMA. Among the Democratic candidates, only the marginal ones support gay marriage.

Now, for a political point. As a liberal, I oppose gay marriage on free choice grounds. (I know, it’s complicated. Let’s not get into it.)

A constitutional amendment to protect marriage is needed. Congressional legislation that enhances DOMA might be a useful stopgap measure, but it won’t get the job done long-term.

Fleming wants to re-Christianize America. I’m a Christian. I’m not sure I agree with this, but as a matter of political advice, the movement to protect marriage with a Constitutional amendment would be a terrific vehicle for such a program of action.

Thus, instead of seeing a marriage protection amendment as the end-goal of a long process, we should be seeing the marriage protection amendment as the first step.

We have every reason to be optimistic. Several months after Canada’s courts submitted their demand for gay marriage, support for gay marriage among Canadians has slipped from 50% to 31%. This is huge. It shows that the more people think about gay marriage, the less they like of it.

Every question we raise, every concern we voice will be rewarded. We can win this struggle.

Want more evidence? Need I remind you that the movement to abolish slavery was firmly rooted in Christian activism? Christian activism in America has a tradition of success.

On the other hand, gay marriage is very much unlike alcohol. Prohibition was a bad idea. The people were just never going to accept it. Nearly everybody drinks alcohol from time to time.

On the other hand, a very small majority of the population is gay, and only a fraction of gay people ever want to get married. The harm gay marriage would cause is all out of proportion to the benefits to the few it would provide.

We can win. Let’s go forward.

Fleming is right that America has been de-Christianized. But the same is true of most of the European countries, and only two of them have legalized same-sex unions from what I’ve read (Belgium and the Netherlands). Are we worse of than Spain or Italy? So I think there is some hope that an amendment could pass.

Mr. Epstein makes a very persuasive case about the futility of passing an amendment without first removing activist judges from the bench. After all, if they can invent new constitutional rights from “penumbras and emanations” (things more likely to be found at a toxic waste dump), they can just as easily twist and pervert a marriage amendment. As Mr. Epstein pointed out, the federal judiciary has already effectively destroyed the constitution in numerous areas.

The activist nature of the judiciary is what makes Article VI so disturbing. As Mr. LeFevre and others pointed out, there is no logical argument that a treaty could be used to overrule the constitution. As I said in my earlier post, the classic interpretation of this Article is that a treaty supercedes state constitutions and state laws - not federal statutes or the US constitution. While that is certainly disturbing in its own right, especially when one considers what happened in Pennsylvania recently with imported green onions from Mexico, it pales in comparison with the potential havoc that judges like O’Connor, Kennedy, et al could wreak through arbitrary rulings employing Acticle VI as a sledgehammer against what is left of the constitution.

As Mr. Auster mentioned in another thread, conservatives are much too willing to assume that the other side has honorable, though misguided, intentions. That may be true for rank and file liberal voters, but hardly for the kind of leftist ideologues who all too often sit on the federal bench.

“they can just as easily twist and pervert a marriage amendment.”

That’s not true. If a marriage protection amendment were to pass, it would pass only because of massive political pressure. For the court to junk the entire amendment, it would need substantial support politically and legally. The Supreme Court simply would not have the political capital to do such a thing. The practical consequences could include impeachments of justices, and new justices that would interpret the amendment correctly. The legal establishment would not stand for it either. If the Supreme Court were able to circumvent a constitutional amendment, then all constitutional rights would be up for grabs. Even the ACLU would not want the Supreme Court to junk a marriage protection amendment.

In the Ramesh Ponnuru article at NR that I criticized a few months ago, Ponnuru quotes lots of negative poll data and essentially implied that the battle was over and there was no point in fighting. Fleming’s position is worse. He positively says we should not support the amendment because there’s no enough support for it. This is pure defeatism and it doesn’t even make sense. That one’s side may have little or no chance of winning may be a reason not to bother fighting; it is not a reason to oppose one’s side. Further, the idea that one’s side has little chance is a groundless assumption. The battle hasn’t even started yet. New situations may appear that will alter public opinion, such as the actual start of same-sex marriage in Massachusetts.

Finally, when I see people arguing against the amendment because at some _future_ time some _possible_ treaty may be passed that may _possibly_ override the amendment, that is not just defeatism but super defeatism.

At this time, I still support the amendment idea. Even so, I think it is also important to support the campaign to remove leftist judges - for all the reasons cited above. Impeachment and reducing their salaries to zero appear to be the two methods available. Thus far, impeachment seems to have been applied only in the most outrageous cases. Alcee Hastings was impeached and removed from the federal bench due to bribery. Amazingly, he was elected to the House a couple of years later.

I think there is a reasonable chance of widesperead popular support of a marriage amendment. The ruling eilte doesn’t necessarily respond to popular sentiment - though at times they will if the pressure is intense enough.

Mr. Hagen, the Supreme Court has already circumvented the 14th amendment in the Grutter decision last summer. In case you weren’t paying attention, “diversity” is now a “compelling state interest” which overrules “equal protection of the laws.” They have additionally done away with most of the 10th amendment, portions of the 2nd, etc. If there were massive popular pressure for a marriage amendment, it is certainly possible they would refrain from nullifying it out of fear of impeachment. If the campain to clean up the judiciary gains some real legs, there could be even be some reversals of some of the more egregious decisions that have come down.

I agree with Carl on the necessity of impeaching judges who have seized legislative power for themselves. Such impeachment is vital if Americans are to retain or regain their liberties. The supine attitude of legislatures and the people before these judicial usurpations is the clearest evidence that Americans no longer have within them the principles of liberty, and the spirit of indignation in defense of liberty, that gave birth to this country.

I want to clarify my point for Mr. Auster about the international treaty possibilities. He may not have directed his comment above to me specifically, but I have NEVER said we should oppose or abandon a marriage amendment. Twice above I have affirmed that we should definitely push for it and that we should pursue “everything we can possibly do within the political system to oppose this trend.”

And with due respect, I think Mr. Auster is overrelying on the term ‘defeatist’ to the point where it risks becoming cliché. There’s certainly a time and place for it, but not in the points I raise. We have to be realistic in our strategic assessments and in our choice of tactics if we are to have any chance of success. We have to explore the strengths and weaknesses of our steps; we have to consider the advantages and disadvantages; and we have to look ahead to where the battlefield will be moved if we succeed (or fail) at a given course — this knowledge is essential in pre-emptive (or post-mortem) planning along the way.

There is nothing defeatist about this. It would be defeatist NOT to; indeed, our failure over the decades to adequately anticipate and effectively counter the strategies of the left has only contributed to our current downturn. We should learn from our mistakes lest we repeat them.

Applying this to getting an amendment passed, as Mr. Hagen and Carl and others have noted, it would require a massive groundswell of popular support. It would require grassroots effort in the model of Mrs. Schlafly — it would require leadership that could mobilize the masses toward the goal.

I have no doubt at all that overwhelming popular support could be so mobilized, but I am unclear where the needed leadership would come from, with both the charisma and the skills at organizing, and the articulation of one like Mr. Auster. Jerry Falwell did well in the late 70s early 80s; Mrs. Schlafly of course is a legend, but although she still does good work she is past her prime as an organizer. The Christian Coalition has done a good job, but for several reasons they have left much to be desired and seem to have diminished in significance — again due to lack of effective leadership.

These are problems I see that must be overcome, and may well be overcome as time goes on. But please don’t call me defeatist for pointing it out. ;-)

I wasn’t thinking specifically of Joel’s comment, and I absolutely agree with him that a grave flaw of the conservative movement has been its failure to consider all the difficulties that lay ahead of it. The typical result has been the erruption of an undue conservative triumphalism when conservatives had only succeeded in breaching the outer walls of liberalism, e.g., winning an election. What the conservatives didn’t see was that behind those walls was a vastly larger and more powerful enemy than they imagined, e.g., that liberals controlled the culture. So their efforts would go to naught, because they had failed to consider the true size and character of the enemy.

By defeatist, I was not thinking of Joel but of Fleming and people who echoed Fleming who seemed to be saying that _because_ there were these difficulties, therefore the amendment shouldn’t even be tried.

Well said by Mr. Auster.

I think that where treaty issues, et.al. enter into this context is that we need to recognize that if we do get a marriage amendment passed, (and may God grant it be so,) the homosexual activists will not just concede defeat, pack up and go home. They will simply take their activism to a global level, and will become a vocal force against national sovereignty in due course.

Therefore, as we pursue our fight we should warn of the danger and, for instance, prod our Senators to solicit the views of prospective judicial appointments on the relative legal standing of international treaties against our own Constitution. We should also, in making the views of senatorial candidates an issue, reiterate to the public the significance of the power of treaty ratification — both legitimate and possibly illegitimate significance in view of the liberal judiciary.

And national sovereignty needs to be a part of our discourse in this connection in preparation for where the next battleground would likely be.

In the meantime, we absolutely must pull out all stops in seeking an amendment. The wording of this amendment must be very careful though. Some of the examples I’ve seen “Marriage shall consist of…” leave open the possibility of some court simply applying a different term to SSU’s that still confers essentially the same privilege and recognition.

I also think it may be necessary to specifically delimit the Full Faith and Credit Clause, but in such a way that doesn’t give credence to an exception to the primary provision. I’m not sure how that we be done, but otherwise it leaves open a possible route of circumvention.

These are all useful suggestions by Joel.

On the question of the wording of the amendment, this is the subject of an interesting debate among conservatives. The Concerned Women of America at their website have a useful article disagreeing with the current amendment because, as the article clearly demonstrates, it would leave civil unions up to the state legislatures. They then propose much more sweeping language. On the other side, Maggie Gallahger argues forcefully (in her previous article at the Weekly Standard), that it’s enough for an amendment to stop homosexual marriage, and leave other civil unions to the states. The issues are not simple and ought to be considered by all of us.

It is defeatist to dismiss the idea of an amendment as I did earlier. I neglected to say the idea has merit. I suppose I am too focused on a few fundamental things such as immigration reform and Supreme Court reform. Getting this homosexual marriage thing thrown out though is perhaps just as fundamental to the health of this country.

How is it “defeatist” to simply offer a different strategy to oppose gay marriage. Tom Fleming does not say we should just give up and let gay marriage happens, but suggests that Americans need to take back their churches and culture before they can take back the government with anyone who will do anything to protect the culture. This is a different strategy than what Mr. Auster suggests, but it is not defeatist.

Mr. Auster says the FMA is necessary because activist judges will most likely create a right to gay marriage, and also acknowledges we should impeach activist judges. It takes 2/3 of the senate impeach a judge and to propose a federal amendment, so it should be easier to impeach the justices. If the same people clamoring about the FMA focused their energy at kicking out the Judiciary, who is responsible not just for various pro-homosexual rulings but other montrosities involving immigartion, race, abortion, and the like then much more would be accomplished. In fact one could argue that arguing for the FMA is defeatist because it implicitly accepts that the Judiciary will “get worse before it gets better.”

Mr. Epstein only mentions what it takes to impeach _Federal_ judges. But the battle lines are as much in the State judiciaries. Focusing on impeaching state judges, although a great idea, is not sufficient by itself even if doable.

None of us disagrees with Mr. Fleming’s assessment that we need to restore our Christian foundations, and I would certainly argue that this is paramount. But however Mr. Fleming proposes to accomplish this worthy goal, we cannot step away from the political arena and let this trend steamroll through our legal system in the meantime.

A strategy that says “Charge!” while leaving both flanks exposed for the kill isn’t what I’d call merely ‘different.’

I believe Fleming’s argument is both defeatist and not in touch with reality. I’m surprised that it’s necessary to spell out the logic of this, since it’s been discussed all over the conservative media.

The threat is _immediate_. Within six months, Massachusetts may be performing same-sex “marriages” (which I’ll call “SSUs” for single-sex unions to avoid using the word marriage). Same-sex couples immediately begin flocking to that state, get “married,” go home, and demand that their home state recognize the SSU. The Defense of Marriage Act says the state doesn’t have to honor the SSU performed in Mass. The parties take it to the Supreme Court, which following its reasoning in Lawrence declares the DOM Act unconstitutional. And that’s it, it’s over. Within six months or a year or two years, we could have nationalized SSU.

Now, is it really necessary to point out that it will take a little longer than two years for the American people to “take back their churches and culture”? We are facing this horror _now_. It must be stopped _now_.

Furthermore, I think it’s evident from the whole article that Fleming knows this full well. He knows his “take back the churches” proposal is not going to stop this thing from going through. But the reality is that he is ready and willing to see this thing happen to America, because he hates the existing America so much that he thinks the only way it can be fixed is by destroying it. That’s why I call him a nihilo-conservative.

And here’s another factor that I suspect is at work in this. Lots of regular, mainstream conservatives—including (gasp) neoconservatives—support the FMA. Fleming doesnt want to say anything positive about something supported by a broad reach of regular conservatives, whom he despises. His psychology requires that he stand apart from them, superior to them, dismissing what they’re trying to do.

Very fine points by Mr. LeFevre. I think the hard thing for a lot of us is the realization that we’re going to have to fight this battle on more than one front - it’s a bigger task than simply passing an amendment (as if that weren’t difficult enoough). The thing conservatives forget all too often is the relentless nature of our opponents. As was mentioned, they will not give up and accept the situation should the FMA become reality. Their continuing war upon the Boy Scouts is a perfect example of this characteristic. We must go into battle with our eyes wide open. That’s one reason I would argue that Mr. Epstein’s observations are valuable, along with others here.

My hope is that there would be a way to bring Paleos like Mr. Fleming into the battle as well. This is a huge multi-front battle. We need all the help we can get.

The connotation of nihilo-conservative is enjoyable. But sometimes it seems like a good idea to give the hedonists enough rope so that, as with most people, they will hang themselves. I don’t know enough about Fleming’s beliefs to say this is his idea or anarchy is his idea.

It has proven successful to give liberals enough leeway to prove themselves unfit to govern; even though this strategy was unplanned by the Republicans, their enormous congressional takeover in the mid-1990’s is an example of its success. Also, it is somewhat comforting to realize that because this homosexual marriage genie is merely an idea, it is theoretically possible to put it back in the bottle little by little. On the other hand, we need to be wary of leftist-supported ideas or we could end up in the situation that the Russians did in 1917 (not that homosexual marriage will land us in such horror).

I’ll stop equivocating now.

Is the major political change that Fleming and others desire a result of fundamental ideology such as belief in the true, the good, and the beautiful or is it the result of power? In the short term such as within a century, the latter seems true: Agincourt, Hastings, American Civil War, American Revolution, and 1917 Russian Revolution. In the long term, fundamental ideology such as Judeo-Christianity seems more important: European hegemony for many centuries and the survival of Judaism are examples.

Machiavelli seems to have believed in both ideas. He offered his ideas of ruthlessness in the public sphere as taken-for-granted common sense but advocated scrupulousness in the private sphere. His observations will continue to describe human relations for the immediate future.

There is validity to sacrifice, which maybe can be distinguished from ruthlessness. The distinction may be that I sacrifice, you suffer.

Fleming a hedonist, an anarchist, a liberal, or a power-seeking Bolshie? Nope to all.

On the question of optimism versus defeatism, look at what Maggie Gallagher says at Monday’s NRO: opposition to SSU is rising, the opponents have more intensity than the proponents, and this spells trouble for the Democratic party. To repeat, I see no justification for pessimistic thoughts about how “the amendment can never be passed.” This is a battle that has to be fought, period.

http://www.nationalreview.com/comment/gallagher200312080839.asp

This is certainly a battle that must be fought, and it’s pleasant to note that on this thread, sentiment in favor of fighting it runs about 2 to 1; with opponents merely saying that efforts should instead be focused on judicial impeachments. But surely a two-track strategy is possible? In fact they strengthen each other. By fighting for an amendment you put judges on notice of the possibility of impeachment; while on the other hand, a judge could be forgiven for thinking “why should you impeach me for doing something you didn’t have the gumption to oppose through the legislative process?”

On another thread, Ron wrote: “The success of homosexual marriage itself is not important [to leftists]. If it fails as a legal entity, it still succeeds as part of a dialectic”.

I think that’s right, and that the dialectic is about establishing a complete separation, not simply between church and state, but between man and God. All attacks on the natural order are meant to substitute man as a self-sufficient legislator for himself. Thinking about this the other day, it became clear to me why Mr. Auster describes SSU as a “horror”. Previously I’d thought of it mostly as an absurdity, a really bad joke (though one with potentially horrific practical consequences, e.g. for children). But seeing it as an attempt to say that “natural law is what we say it is, neither more nor less”—to make man into God—fully justifies calling it a horror, and would even if by some miracle the practical consequences didn’t follow.

“and it’s pleasant to note that on this thread, sentiment in favor of fighting it runs about 2 to 1.”

Also, among the conservative elites, there are plenty, beyond the ones we’ve talked about, who keep putting down the amendment. I just heard about a meeting over the weekend where a nationally known conservative journalist (really a libertarian open-borders Wall Street Journal type) said the amendment is not necessary because SSU is not going to happen in Massachusetts, it’s just going to peter out when the legislature refuses to act. He said he would bet $500 that it wouldn’t go through. And therefore working for the amendment would be just a lot of hot air and wasted energy.

Yes, but what if it DOES happen in Massachusetts, and in the meantime nothing was done on the amendment? I think this journalist’s motive is really just to kill any serious action by conservatives.

On the other hand, another well known moderate conservative, a writer who is always rather mild and easy going in his criticisms of the cultural left, wrote something indicating a level of anger at the left that I had never seen before. He said, they don’t just want their way, they want to kick the rest of us out of America. He said Americans are naturally indisposed toward ideological conflict, but as more and more people feel pushed to the wall, that is going to change.

Yes, state courts are a problem as well in some cases. However, if a state’s population is willing to ratify an Amendment, why can’t they simply elect officials who will appoint sound justices and impeach unsound ones.

If a few states chose to allow same sex unions or marriage or whatever you want to call it, I would be appalled, but I do not see it the job of the federal government to tell them what to do. And besides, Mr. Auster claimed that the FMA was primarily concerned with the federal courts.

questioning Fleming’s motives are not only irrelevant, but are illogical. It seems that a great number of neoconservatives oppose the Amendment, as this blog has ably demonstrated, so by Auster’s logic it would make sense for Fleming to use the FMA as a wedge issue between the neocons and the conservative movement’s base (who Fleming shows no disdain for)

Carl, I have been paying attention. The affirmative action case, Grutter, did change the previous precedent. It did not, however, significantly change the practical result.

If a marriage protection amendment were to pass into the Constitution, but the Supreme Court ruled that it had no practical effect, the country would react strongly negatively. The Supreme Court would have violated their expectations.

The result would be the political isolation of the Supreme Court. The Supreme Court does not have the political capital to circumvent any marraige protection amendment.

As for the campaign to impeach leftist judges, I don’t completely agree. That said, if you’re going to do that, link it to the marriage protection movement. Make a campaign of throwing out leftist judges that violate the separation of powers to force gay marriage. Make a campaign of throwing out leftist politicians that support gay marriage.

Make the protection of marriage the central issue. The more we concentrate on marriage, the better the outlook.

As a liberal, I know the Left. I know that they will fight tirelessly. The Left will never give up. Yet, it has no soul. It is hollow. It has a fatal flaw: the Left is liable to melting down. If it doesn’t get its way, it will cry, yell, and whine, discrediting itself.

If we fight, if we work hard, we will win. The amendment will pass.

Finally, the term “SSU” is sub-optimal. The term “same-sex marriage” is favored by gay marriage advocates. Polls say people dislike “same-sex marriage” less than “gay marriage.” The term we should use is “gay marriage” or “homosexual marriage.”

Mr. Epstein, for reasons I cannot fathom, remains closed and indifferent to the threat this country faces. It’s as though he hasn’t taken in anything that’s been said here. He rehearses utterly irrelevant arguments, such as that it wouldn’t matter if some states installed single-sex marriage. He hasn’t grasped that the only alternative to a national amendment against SSM, is nationalization of SSM via the courts.

This indifference or obtuseness on the part of many conservatives to an immediate, manifest, and total threat to our society, and their hostility to the ONLY measure that can head off that threat, is emerging as a phenomenon in its own right.

It’s ironic that Mr. Hagen criticized the term “SSU” just as I was giving that up and trying out “SSM.” One of our participants had objected to any phrase that uses “marriage” because it makes it seem possible that there is such a thing as a marriage between two persons of the same sex. However, single-sex union or SSU is not optimal either because it is indistinguishable from civil unions. So this is a problem. Maybe I’ll try SSM for a while, as it contains the concept marriage but doesn’t spell it out.

I never said that I didn’t see SSM as a potentially major problem, but I personally find decisions made by the federal (and some state) courts regarding immigration, abortion, affirmative action, and other issues much more troubling. Passing the FMA does not address any of these issues and seems to become a meaningful distraction for Joe Six Pack who seems to think it is the only major issue to appeal to Middle America in the next election.

I fail to see what arguments I have ignored. Let us look at the origin of the FMA debate. While I know the idea has been around for quite awhile, this has only become a major issue after Justice Scalia warned of nationalized SSM after the Lawrence decision.

Please explain to me why the natural response of the “family values” crowd and the Republican leadership would not be to simply work to impeach all the judges who could make that possible decision and appoint justices with a sound understanding of a constitution. If they don’t do it, focus on electing politicians who will. Tell me how this is not a subsitute for the FMA, and a better one in that it applies to a myriad of other issues, would be easier to accomplish (if the people who supported the FMA focused their efforts on this), and would not result in an increase in federal power.

Finally I would like to refer to you to an excellent article by Sam Francis from Chronicles in 1996 ( http://www.samfrancis.net/pdf/all1996.pdf scroll to page 40) on the Human Life Amendment. Almost all of his arguments, could apply to the FMA verbatim.

Mr. Epstein indicates at the start that he finds court decisions in other areas “much more troubling” than SSM. He does not see SSM as a first-order or even second-order threat to society. That’s where the difference between us lies. Given that difference, there’s not much point in continuing the discussion. The assumption underlying this discussion that SSM is an ultimate, existential threat to our society that must be stopped. It’s therefore pointless to go into the question of this method versus that method, since Mr. Epstein’s desire to rely on methods of fighting SSM other than an amendment, such as impeachment, is an expression of the fact that he doesn’t care that much about the SSM issue to begin with.

As for impeachment of judges, it is a vital weapon that conservatives must try to bring to life (though not as a substitute for the FMA). I say bring to life rather than revive, since I don’t believe impeachment of judges for usurpation of legislative functions has ever been done.

I discuss the impeachment issue in a separate blog entry: http://www.amnation.com/vfr/archives/001997.html

Mr. Auster is right. The prospect of having our society dignify homosexual pairings with the name of marriage is a civilizational threat. It should be fought relentlessly and on many fronts. Morally, we need to make the case against it as something evil in itself, and as an evil precedent that will open the way to dignifying other perversions such as bigamy and polygamy. Politically, although I question whether it would succeed, we should support an amendment, both to try to protect marriage at the highest level and to put down a moral marker. There is also good in attempting to impeach and remove reckless judges who exceed their authority.

That said, I am in sympathy with some of what Mr. Epstein says. Abortion is a graver danger than homo-“marriage.” So is mass immigration. Homo-“marriage” attacks the institution of marriage. Abortion butchers our children. Homo-“marriage” undermines the moral foundations of our society. Unrestricted mass immigration creates a non-society that cannot resist challenges like homo-“marriage,” because it replaces the old national consensus with a squabbling congeries of mutually antipathetic imported groups, whose only common denominator - as far as I can tell - is carefully cultivated resentment of the kind of people who actually founded and built the United States. The combination of immigration and affirmative action is lethal to any nation.

Mr. Epstein is right to focus on the dangers he cites, and right to lament that mainstream conservatives will not focus on them the way some are now focusing on the threat of homo-“marriage.” HRS

The difference between, say, immigration and homosexual “marriage” is that immigration has been going on for decades and is continuing to go on, while homosexual “marriage” is arriving out of the blue and could be instituted nationally virtually overnight. The fight against immigration will continue, though at present the restrictionist side is very weak and our main task is to gain adherents. By contrast, there is already a majority of the country that would support the FMA.

So this is not a matter of a trade-off between two issues. They are both vital. But the _particular_ moment for the SSM battle is NOW. It could all be lost or won in the next year.

I view _both_ issues as vital, and want to deal with both of them at the highest level of priority. Mr. Epstein indicated that that the SSM issue is rather far down on his scale of priorities. That is the difference between us.

One brief note on the question of the relevance of treaties discussed above — Art. III, Sec. 2 states: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; …”

Those who followed the discussion above will doubtless see the significance of this and how a liberal judiciary could use it to destructive ends in this context.

Yes, the Court could say, we construct this treaty as superceding or changing the meaning of this clause in the Constitution.

I recently stumbled across “gaymarriage,” written as one word. Writing it that way would indicate that it is gay, it is marriage-like, and yet it is something very new and very different.

On the abortion/immigration issue, we liberals have a strategy of moving from one issue to another. From each issue you try to pick up momentum, and then carry that momentum forward to the next issue. You go from civil rights to women’s rights to gay rights to gay marriage, for example. You don’t do that all at once. You do it in stages. The right-wing would be well-advised to adopt the same strategy if it wishes to prevail politically.

I want to see immigration curtailed, but not abortion. Yet, if I did want to curtail both, I would start with fighting gaymarriage. Then, as success is achieved in that arena, I would move to the next point of focus.

A strategic evaluation is in order. Over 60% of Americans want marriage protected from gaymarriage. Over 80% of Americans want immigration stopped. On these two issues, popular support can be mustered on a large scale. Support for the pro-life position is not quite as high. Therefore, strategically, either immigration or gaymarriage should take precedence.

Like Mr. Auster says, immigration has been in large numbers for a long time now. Immigration if left unchecked does present a mortal danger to our country. Yet, we could go for a few more years with this massive immigration and then curtail it, and still survive.

On the other hand, the threat from gaymarriage is immediate and apparent. Once gaymarriages occur in Massachusetts, it will be politically difficult to take gaymarriage away from those couples. Shortly thereafter, the Supreme Court will probably declare gaymarriage to be a Constitutional right. Once that happens, reversing the tide may be completely impossible. The institution of family may never recover. Therefore, strategically, gaymarriage should take precedence over immigration.

We need to get the amendment passed. The Human Life Amendment and Roe v. Wade are instructive. The Human Life Amendment was only proposed after Roe v. Wade. To take abortion away from people when they’ve gotten used to it is proving to be politically very difficult. Had the amendment been proposed before Roe v. Wade, the results may have been different.

So much better then if we cut gaymarriage off at the pass. We should push for the Marriage Protection Amendment as soon as possible, and certainly before the courts, especially the Supreme Court, address the issue. By then, it may be too late.

Once marriage is protected, the right-wing can take that momentum and shift it into a new issue.

Perhaps a new political organization is needed for this. If so, one could be quickly formed.

I generally agree iwth Mr. Hagen’s point that the HLA could have probably been passed before Roe v Wade, but at the same I don’t think anyone could have seen it coming and the fight against abortion did not really heat up until after Roe v. Wade. Had conservatives realized the severity of the Griswold decision in 1965 (the same year as the disastarous Immigration act, yet the conservative movement was primarily concerned with fighting a foreign war, hmm sounds familiar) and focused on reining in the judiciary, then Roe v. Wade may never have happened.

An article in the Dec. 10-16 Village Voice celebrates heterosexual couples who are refusing to marry while homosexuals can’t, and asks: “Can you really claim to support the rights of gays while you’re buying into the institution that most painfully marginalizes gay couples?” Remember when folks burnt their draft cards? Now we’re being exhorted to burn our marriage licenses, too…

http://www.villagevoice.com/issues/0350/baard2.php

Commenting on Paul’s post of 9:38 AM:

Homosexuality needs nothing to “marginalize” it. It’s already marginal in and of itself, intrinsically so, exactly as is transvestitism, incest, bestiality, bigamy, prostitution, alcoholism, wife-beating, child abuse, adultery, drug addiction, and other indecent vices that people are naturally ashamed of and try to hide if afflicted with them. Such things are not normal. Period. They’re sick. The whole leftist project of “bringing homosexuality out into the open” is merely part of their el-sicko scheme to bring down society as we know it and replace it with a way-out weirdo wacked-out looney-tunes left-wing totalitarian dictatorship that will be so heinous and inhuman it will make Joseph Stalin, Adolf Hitler, Pol Pot, Robert Mugabe, the Taliban, and Idi Amin Dada look like knee-jerk liberals. Sure, there may be some far-off parallel universe made up of anti-matter or something where everything is reversed, where homosexual marriage is normal. I don’t deny that’s a very real possibility. In this universe we’re in, it’s marginal.

Unadorned is right, which raises the question so often addressed on this site: why do they do it? I understand the answers people provide here, but even those do not provide a fully satisfactory explanation of the liberal project of destroying human society. Perhaps some things can never be fully explained, or perhaps it is a particularly virulent manifestation of original sin. HRS

Mr. Sutherland wrote: “perhaps it is a particularly virulent manifestation of original sin.”

Hatred of God — that I think is a sufficient explanation.

It becomes clearer that Kings Asa and Jehoshaphat had the right idea in their day — 1 Kings 15:11-12; 22:46; and King Josiah too — 2 Kings 23:7.

“And Asa did that which was right in the eyes of the LORD, as did David his father. And he took away the sodomites out of the land, and removed all the idols that his fathers had made.”

Meanwhile, in another ‘Western’ land, the High Court of Australia has just ruled that homosexuals might be granted asylum if they come from countries where they must be discreet about their ‘orientation.’

http://www.news.com.au/common/story_page/0,4057,8120496%255E421,00.html

” The decision puts gay asylum-seekers fleeing sexual persecution on a par with people fleeing religious or political persecution.”

The Australian decision was greeted with dismay by callers to Melbourne talkback radio stations yesterday. It’s a case once again of the judiciary imposing their own view on the general public.

One odd feature of the decision is that homosexuality is not so well accepted here that homosexuals can live openly as they please. Perhaps in one or two inner suburbs of Sydney and Melbourne, but elsewhere I’ve never seen homosexuals make themselves too obvious. In other words, some level of discretion is understood to be necessary. Therefore, according to the decision Australian homosexuals should be able to apply for refugee status in other countries.