California and the Marriage Amendment

The Claremont Institute’s Bradley C.S. Watson has an article on ISI’s First Principles web journal on the need for a federal amendment defining the nature of marriage. The heart of his argument is twofold. First, Watson predicts, judicial fiat will override the decisions of voters in individual states, as we have already seen in Massachusetts and California. Then, he writes:

Same-sex couples mar­ried in one state will invariably seek to have those marriages (and the incidents thereof, including child custody decrees) enforced in states that do not rec­ognize such marriages. For traditional marriage to survive, at least in some states, these states must ignore the court orders of other states, which will likely not be constitutionally possible. As Lincoln said of another fundamental moral question, “this government cannot endure, permanently, half slave and half free. It will become all one thing, or all the other.” In short, for both marriage and self-government on marital questions to survive, a federal constitutional amendment will be required.

Watson also has an interesting aside on the way in which the California Supreme Court claimed a right not only to grant benefits and governmental recognition to same-sex partnerships, but to change the actual meaning of the word marriage:

Furthermore, in requiring that same-sex couples have the right to call themselves married, courts have engaged in a kind of nominalism that is unknown to the common law. The material benefits of marriage can be conferred through civil union status rather than actual marriage. This means that the courts in Canada, Massachusetts, and California have asserted a stunning claim: the right to a noun. The arguments advanced by the courts’ majority opinions have less to do with constitutional documents or constitutional reasoning, and more to do with the Orwellian desire to police the English language, allowing parties the legal entitlement to label themselves as they see fit. This revolutionary development in effect gives courts the right to control the contents of the Oxford English Dictionary.

Another reminder of why the definition of marriage is what’s at stake.