Posted on 03/03/2004 6:27:58 AM PST by jmc813
The President’s recent announcement that he supports a constitutional amendment defining marriage has intensified the gay marriage debate. It seems sad that we need government to define and regulate our most basic institutions.
Marriage is first and foremost a religious matter, not a government matter. Government is not moral and cannot make us moral. Law should reflect moral standards, of course, but morality comes from religion, from philosophy, from societal standards, from families, and from responsible individuals. We make a mistake when we look to government for moral leadership.
Marriage and divorce laws have always been crafted by states. In an ideal world, state governments enforce marriage contracts and settle divorces, but otherwise stay out of marriage. The federal government, granted only limited, enumerated powers in the Constitution, has no role whatsoever.
However, many Americans understandably fear that if gay marriage is legalized in one state, all other states will be forced to accept such marriages. They argue that the Full Faith and Credit Clause of the Constitution essentially federalizes the issue; hence a constitutional amendment is necessary.
But the Defense of Marriage Act, passed in 1996, explicitly authorizes states to refuse to recognize gay marriages performed in other states. Furthermore, the Supreme Court repeatedly has interpreted the Full Faith and Credit clause to allow Congress to limit the effect of state laws on other states. In fact, federal courts almost universally apply the clause only to state court judgments, not statutes. So a constitutional amendment is not necessary to address the issue of gay marriage, and will only drive yet another nail into the coffin of federalism. If we turn regulation of even domestic family relations over to the federal government, presumably anything can be federalized.
The choices are not limited to either banning gay marriage at the federal level, or giving up and accepting it as inevitable. A far better approach, rarely discussed, is for Congress to exercise its existing constitutional power to limit the jurisdiction of federal courts. Congress could statutorily remove whole issues like gay marriage from the federal judiciary, striking a blow against judicial tyranny and restoring some degree of states’ rights. We seem to have forgotten that the Supreme Court is supreme only over lower federal courts; it is not supreme over the other branches of government. The judiciary is co-equal under our federal system, but too often it serves as an unelected, unaccountable legislature.
It is great comedy to hear the secular, pro-gay left, so hostile to states’ rights in virtually every instance, suddenly discover the tyranny of centralized government. The newly minted protectors of local rule find themselves demanding: “Why should Washington dictate marriage standards for Massachusetts and California? Let the people of those states decide for themselves.” This is precisely the argument conservatives and libertarians have been making for decades! Why should Washington dictate education, abortion, environment, and labor rules to the states? The American people hold widely diverse views on virtually all political matters, and the Founders wanted the various state governments to most accurately reflect those views. This is the significance of the 10th Amendment, which the left in particular has abused for decades.
Social problems cannot be solved by constitutional amendments or government edicts. Nationalizing marriage laws will only grant more power over our lives to the federal government, even if for supposedly conservative ends. Throughout the 20th century, the relentless federalization of state law served the interests of the cultural left, and we should not kid ourselves that the same practice now can save freedom and morality. True conservatives and libertarians should understand that the solution to our moral and cultural decline does not lie in a strong centralized government.
Final vote counts revealed that Proposition 22 won in 52 of California's 58 counties, including all of the major metropolitan areas except for San Francisco. The six counties which did not approve Prop. 22 were all in the immediate San Francisco Bay area, including: Alameda county, Marin county, San Francisco county, Santa Cruz county, Sonoma county, and Yolo county.
Wrong! Government is not neutral. Government cannot change a heart, yet it can help coarsen a culture. Exhibit one: abortion. Ron Paul should know that.
This is not correct. The Supreme Court will, once Massachusetts has gay marriage, have the opportunity to wipe out all DOMA laws across the country, and force homosexual marriage on the entire nation.
How terribly sad that too many of my neighbors are so very comfortable with marriage, and every other facet of their lives, being a "governmental affair".
The freedom from slavery I fight for my children to have, would be made so much easier were it not for your, and most Republican's, willing servitude.
Marriage should never have been a "governmental affair".
Erm. Duh. Was the MA rationalization of gay marriage enacted by the legislature, or was it mandated by a STATE COURT JUDGEMENT?
You've misread what he wrote. He was referring to the states on the receiving end of out-of-state legal materials. In other words, the FFC clause is not used to strike down state laws; rather it's used most often to correct state court judgements. (more on that here)
Dr. Paul nails it right on the head: If the federal courts were to use the FFC to force same-sex marriage on other states, they would be doing so in violation of all precedent, as well as common sense. And that would provide full justification for states to out-and-out refuse to accede to their rulings.
Even if some States legalize gay marriage, and some don't, and the feds do not force those that don't from recognizing them, the federal government -itself- still has to take a position for the sake of taxes, social security, etc.
So? Let them apply the definition of marriage that's prevalent in whatever state the couple is living in. A much better (and more constitutional) solution, of course, would be for the federal government to "divorce" marriage from all of these policies.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.