Aunt Fancy is spinning in his grave tonight

by John Holbo on February 26, 2004

Marriage in the United States shall consist only of the union of a man and a woman. 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.

So much not to like. Yet our outrage is such – and rightly so – that we may flail about to find yet more holes through which to vent. Yesterday folks were pointing out that the proposed FMA would be the first amendment to exclude, rather than include – if you see what I mean. Thought about adding my voice to that choir. Then: nah, people are sinful. Ergo, someone proposed an amendment back in the 19th century that never made the cut but was way worse. We’ll read about it in the blogs tomorrow. And Jack Balkin does not disappoint. And, since President Buchanan is somewhere in Belle ‘Bucky’ Waring’s family tree (great, great, great grand-second-uncle or something?) – it’s all in the family. She’s not a direct descendant, mind you, because Buchanan never, erm, married. Ahem: “Buchanan’s long-time living companion, William Rufus King, was referred to by critics as his “better half,” “his wife,” and “Aunt Fancy”.”

But I digress.

I would be curious to know whether Bush can legitimately be deprived of this laurel: first sitting President to support a Constitutional amendment without knowing – hence without caring – what it says.

I trust I am not misunderestimating. As we know, the silly thing is written in such a way that no one can say with confidence whether – if and when released into the wild – it would let the states decide about same-sex civil unions, or expressly forbid them from deciding. (See also: Volokh vs. Ponnuru. And the Instaprof still hopes his guy isn’t such a bad guy.)

To be a little more specific (and pace Balkin): it defies credibility – nay, it takes credibility home and makes it like a thing illegal between consenting adult males in many jurisdictions – that this pair of sentences, the FMA, is not ill-composed by design. Its drafters despair of convincing the benighted to approve irrational hatred on the plain merits. Their best shot is a thing that muddles through, disguised as a defense of federalism, then judges will read and notice it is an attack on federalism. A lot for Gary Bauer to love, if there is any chance this theocratic Trojan Horse might penetrate the Constitutional gates. A lot for Bush-Rove to love, unless it all blows up in their faces (pleasepleasepleaseplease). Hard to keep all these folks happy under the tent – squabblesome, demanding, fractious things. An ambiguous-by-design amendment proposal might be the ticket. It doesn’t just drive a wedge into the ranks of Dems, it papers over cracks in the Rep coalition. It allows you to say one thing while in effect saying the opposite – one out of each side of your mouth. Of course, eventually it will have to decided which one thing it says. But that is some judge’s problem.

So the drafters are fanatical not cynical; Bush is probably cynical not fanatical. But there have been bad men before. Passing the buck to judges is possibly a temptation that has passed this way. Has any sitting President ever before placated a strained base by advocating a Constitutional amendment without knowing what it means? More evil amendments have been proposed, fair enough. But has a proposed Constitutional amendment ever before been this badly written by design?



Chris Martin 02.26.04 at 4:54 pm

You’ve got a typo in the url under the link “ahem”


jholbo 02.26.04 at 5:01 pm

Thanks. Fixed.


praktike 02.26.04 at 5:31 pm

Can we make Holbo a permanent CT poster?

At any rate, wasn’t Buchanan supposed to be the president who was so handsome that everyone who saw him, man or woman, swooned and was mesmerized into supporting him?


praktike 02.26.04 at 5:37 pm

Never mind, that was Handsome Franklin Pierce.


HW 02.26.04 at 5:42 pm

I liked the post, but I had to laugh because my family has long taken pride in being descended from a Vice-President of the US: yes, William Rufus King (I think the descent comes from his niece). I don’t think they know about the “Aunt Fanny” thing…


JRoth 02.26.04 at 7:14 pm

Surely there’s another president with a Longtime Comapanion? Gad, I hate to think that the only gay president was also the worst one (it would be ironic – if excrutiating – if Bush, with 4 more years, displaced his predecessor for that debased distinction).


msg 02.26.04 at 7:31 pm

There was a deeper sorrow in Buchanan’s life than the love that dare not speak its name. Though that was, evidently, a burden he bore as well.

Is it possible, even likely, that what Bush was when he entered his term is not what he is as he prepares to leave it?
I say yes. I say what he is now is something much less and much more than an individual, closer to the queen (cough) of an insect hive.
The steady assault on that one individual, or the simulacrum of an individual, the marker, the chess piece, is cathartic but less than optimally effectual.
And attacking the ludicrous postures of theocrats as buffoonish nonsense is also cathartic, but submissive to the misdirection those postures really are.
It’s about control.
Gay marriage represents loss of control, not sex, though the individual legislators and their foaming-at-the-mouth-at-the-thought-of-perversion brethren and sistern are massively uncomfortable with the sex part, because their sexuality is controlled.
Attack the controlling agency.
But it’s invisible and we don’t have a name for it.
So name it. Get deeper.
This is not about civil recognition of homosexual partnerships, it’s about control of the essential nature of the human species. It’s about the future not the present. In that very real sense it’s about children. The gay adults of tomorrow are children today. Too much of this conflict has been shaped as only contemporary. The other side chooses the playing field, the rules, and the goal.
And we play, as though it was a game.


phil 02.26.04 at 8:14 pm

jroth: Every now and again, someone trots out Abe Lincoln, so it’s not all bad.


msg 02.26.04 at 8:17 pm


Thomas 02.27.04 at 6:09 am

All this time I’d thought that the Supreme Court’s 1973 amendment was the first to exclude–that amendment, as you’ll recall, excluded the unborn from the protection of the law. So surely this isn’t unprecedented in the modern era.


Doug 02.27.04 at 4:39 pm

If thomas thinks the Supreme Court writes amendments to the Constitution, no wonder’s he’s dispirited. Time to change the ol’ profession, m’boy.


HP Rand 02.27.04 at 6:03 pm

At the risk of sounding like a conspiracy theorist, who gains from the passage of a constitutional amendment prohibiting “gay marriage”? Business does. Insurance companies do.

Even if the wording is so vague that a state might slide a law allowing it under the mat, big business and their insurance providers still have themselves a constitutional amendment to back their refusal to grant health insurance to partners in a gay union, or grant pension payments to a surviving gay partner.

Since a quite large number of working Americans lack health coverage, it isn’t that bold a leap to say that businesses and the insurance providers are concerned about how many of them might become eligible for coverage, at a substantial cost to the companies involved, if marriage between gays is legitimized.

Since most retirement pensions will continue to be paid to a surviving spouse, it’s no great leap to make the same assumption about savings to companies if a gay partner can’t be a legal spouse: the pension continues to die with the worker since, being gay, he can’t have a legal spouse entitled to those payments. In this case, it’s probably no coincidence that the money strapped federal government has some of the best “worker” health benefits and pension plans around.

There’s nothing wrong with the wording of this amendment, no matter how many loopholes it might seem to create. Just let them get the law on the books, and the business and insurance company lawyers will make certain that partners in a same sex marriage are excluded from receiving rights or monies given to partners within a heterosexual union. Even if they ultimately lose, they’ll keep things tied up in the courts long enough to save a substantial amount of money.

As with almost all things political in this nation, to understand why something is being done or attempted, all one needs to do is follow the money. When you figure out who stands to make, or save, money by the passage of a law, then you understand who is behind that law.


Thomas 02.28.04 at 3:10 am

Doug–don’t all of us who believe in a living constitution believe that the Supreme Court writes the amendments? The thing doesn’t amend itself, does it?

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