Marriage Amendment Protects Federalism

Heritage ^ | July 12, 2004 | Edwin Meese, III

[Tailgunner Joe]

In our system of law, the powers of government are divided between the federal and state governments. The framers rightly left marriage policy, as so many other things, with the states.

Yet the fundamental definition of marriage is no mere policy issue. We’re talking about the very integrity and meaning of one of the primary elements of civil society.

Nor is this a matter for state-by-state experimentation. Society isn’t harmed when high-tax states live side by side with low-tax states. The market adjusts to the inconsistency. Not so with marriage. A highly integrated society such as ours—with questions of property ownership, tax and economic liability, inheritance, and child custody crossing state lines—requires a uniform definition of marriage.

In a free society, certain fundamental questions must be addressed and settled for the good of that society. States can’t impair the obligation of contracts, or coin their own money, or experiment with forms of non-republican government. We learned the hard way that the nation could not endure half slave and half free.

If marriage is a fundamental social institution, then it’s fundamental for all of society. As such, it is not only reasonable but obligatory that it be preferred and defended in the law and, if necessary, protected in the U. S. Constitution.

This doesn’t mean that marriage must be completely nationalized or should become the regulatory responsibility of the federal government. Policy decisions concerning questions such as degrees of consanguinity, the age of consent, and the rules of divorce should remain with the states.

The wisdom of extending certain benefits that stop well short of marriage—that don’t undermine the distinctive status of marriage—are policy questions that should be the responsibility of state legislatures.

But we must protect the integrity of the institution as such by defining the societal boundaries and determining the limits beyond which no part of society can go.

A constitutional amendment that defines marriage would protect the states’ capacity to regulate marriage by sustaining it as an institution. In order to guard the states’ liberty to determine marriage policy in accord with the principles of federalism, society as a whole must prevent the institution itself from being redefined out of existence or abolished altogether.

[what's up]

The framers rightly left marriage policy, as so many other things, with the states.

It would have been one of the last things they would have considered to need constitutional attention in that day and age.

This amendment is to prevent the onerous burden of frivolous marriage legislation from absolutely overwhelming and bankrupting the States. This is getting serious.

Not to mention preventing the liberal Supreme Courts in many states from defining marriage for the people.

A sacred institition needs protection here...for the unity of the country at large.

[Lady Eileen]

Edwin Meese bump.

[spunkets]

"Yet the fundamental definition of marriage is no mere policy issue. We’re talking about the very integrity and meaning of one of the primary elements of civil society. "

Ditto BuMp.

[snopercod]

All the federal government has to do is revert back to the time before the socialist Roosevelt started taxing one group and giving the loot to another, and all the "problems" will go away.

Nobody should be forced to pay to support the chosen lifestyle of others. Period.

[GrandEagle]

I have really mixed ideas on this one. You make a compelling argument for the amendment. However, with a simple 50%+1 vote, the Congress can remove the Supreme Courts jurisdiction in the Federal Defense of Marriage act. End of story.
On the other side though, another 50%+1 could restore it, thus leaning the favor toward an amendment.
I have a really difficult time wanting to amend our Constitution. This was the same issue that the Danbury(sp) Baptist Association had with the first amendment. If it is even mentioned, then there will come a day when the Federal Government thinks it can meddle in it.
Their fears were well founded.

[inquest]

On the other side though, another 50%+1 could restore it

That wouldn't be too likely to happen. Politically, it's much easier for liberal Congressmen to do nothing than to actively support the perversion of marriage.

[GrandEagle]

Politically, it's much easier for liberal Congressmen to do nothing
Good point.

[Paleo Conservative]

I have really mixed ideas on this one. You make a compelling argument for the amendment. However, with a simple 50%+1 vote, the Congress can remove the Supreme Courts jurisdiction in the Federal Defense of Marriage act. End of story.

And with a 5-4 vote the Supreme Court can defacto ignore that removal of jurisdiction.

[GrandEagle]

And with a 5-4 vote the Supreme Court can defacto ignore that removal of jurisdiction.
No more than they can ignore an amendment to the constitution.
Article III, Section 2:
In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

I can't argue with the fact that they pretty much ignore the Constitution, but ignoring a limitation place on them by Congress is also clearly not constitutional and would have no more legal authority than me declaring something as law.
Limiting the Supreme Court is clearly something that they have the votes to do. Passing an amendment is clearly not. I believe that it is simply showboating; giving the appearance of action while doing nothing.

[take]

Gay Marriage Roll Call Vote

The 50-48 roll call by which the Senate blocked a constitutional amendment to ban gay marriage. Supporters of the amendment fell 12 votes short of the 60 they needed to advance the bill.

On this vote, a "yes" vote was a vote to advance the measure and a "no" vote was a vote to stop it.

Voting "yes" were 3 Democrats and 45 Republicans.

Voting "no" were 43 Democrats, 6 Republicans and 1 Independent.

X denotes those not voting.

Democrats Yes

Byrd, W.Va.; Miller, Ga.; Nelson, Neb.

Democrats No

Akaka, Hawaii; Baucus, Mont.; Bayh, Ind.; Biden, Del.; Bingaman, N.M.; Boxer, Calif.; Breaux, La.; Cantwell, Wash.; Carper, Del.; Clinton, N.Y.; Conrad, N.D.; Corzine, N.J.; Daschle, S.D.; Dayton, Minn.; Dodd, Conn.; Dorgan, N.D.; Durbin, Ill.; Feingold, Wis.; Feinstein, Calif.; Graham, Fla.; Harkin, Iowa; Hollings, S.C.; Inouye, Hawaii; Johnson, S.D.; Kennedy, Mass.; Kohl, Wis.; Landrieu, La.; Lautenberg, N.J.; Leahy, Vt.; Levin, Mich.; Lieberman, Conn.; Lincoln, Ark.; Mikulski, Md.; Murray, Wash.; Nelson, Fla.; Pryor, Ark.; Reed, R.I.; Reid, Nev.; Rockefeller, W.Va.; Sarbanes, Md.; Schumer, N.Y.; Stabenow, Mich.; Wyden, Ore.

Democrats Not Voting

Edwards, N.C.; Kerry, Mass.






Republicans Yes

Alexander, Tenn.; Allard, Colo.; Allen, Va.; Bennett, Utah; Bond, Mo.; Brownback, Kan.; Bunning, Ky.; Burns, Mont.; Chambliss, Ga.; Cochran, Miss.; Coleman, Minn.; Cornyn, Texas; Craig, Idaho; Crapo, Idaho; DeWine, Ohio; Dole, N.C.; Domenici, N.M.; Ensign, Nev.; Enzi, Wyo.; Fitzgerald, Ill.; Frist, Tenn.; Graham, S.C.; Grassley, Iowa; Gregg, N.H.; Hagel, Neb.; Hatch, Utah; Hutchison, Texas; Inhofe, Okla.; Kyl, Ariz.; Lott, Miss.; Lugar, Ind.; McConnell, Ky.; Murkowski, Alaska; Nickles, Okla.; Roberts, Kan.; Santorum, Pa.; Sessions, Ala.; Shelby, Ala.; Smith, Ore.; Specter, Pa.; Stevens, Alaska; Talent, Mo.; Thomas, Wyo.; Voinovich, Ohio; Warner, Va.

Republicans No

Campbell, Colo.; Chafee, R.I.; Collins, Maine; McCain, Ariz.; Snowe, Maine; Sununu, N.H.

Others No

Jeffords, Vt.

[Apogee]

We would be far better served if we sought to pass amendments which defined "good behaviour" in judges, and a proper perspective on the relationship between treaty and international law and the constitution.
IMO if the proposed amendment passed, we might find activists seeking amelioration in the courts via these last two channels, as they have in other "human rights" cases.
To my thinking, the constitution should stay within the narrow confines of regulating government behaviour rather than people behaviour. When proposals to step out of that role come up - alcohol, flags, marriage... - we automatically step out of the realm of the limited (yet strong) and unintrusive governmental model and into the unlimited. Then what next?
Perhaps a proposal that would address the inevitable "full faith and credit" conundrum - which will occur when some states recognize same sex unions - would fall in line with this vision of government, but I am not sure that much else would.
The founders left off the slavery issue for valid reasons (though we still ended up in a regionally divided civil war over it). I would wonder that addressing the issue at hand in our current society would result in a similar constitutional crisis, as the opponents of the amendment would seek to undermine the authority of the constitution (though of course they do that in any case), or try to turn to a "higher authority" in the form of international law (some Justices having pointed that way already).

Just quick thoughts, one day I hope to solidify them more...

[Apogee]

cf Lawrence v. Texas:
"To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ ;56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent."

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-102

[newzjunkey]

This amendment is to prevent the onerous burden of frivolous marriage legislation from absolutely overwhelming and bankrupting the States. This is getting serious.

Bogus.

Not to mention preventing the liberal Supreme Courts in many states from defining marriage for the people.

Why would they need to? Marriage is already "different" in states all over the country. LA offers a non-'no fault divorce' marriage license but CA does not. Some bring 'community property' rights, others do not. Some have lower age restrictions than others. There is already *NO* uniform marriage in the US. This isn't the abortion issue where they had the fig leaf cover of "privacy" and the Dr/patient relationship which allowed them carve out a uniform standard. This is more like driver's licenses. Marriage is a legal document that isn't and hasn't been uniform across the states but the terms *are* recognized across boundries. It only exists, for the state, to afirm certain rights, responsibilities, privledges and rules in case of divorce. A sacred institition needs protection here...for the unity of the country at large. The gov't has *NO* business in the sacred. "Render unto Caesar what is Caesar's. Unto God what is God's." And the marriage civil contract is *Caesar's* making. The "sacred institution" you speak of is what many believe takes place between spouses and their relationship to God. I've been saying for years, all "marriage licenses" should be properly called "civil unions" to underline their secular purpose. Apparently, in your world, Justices of the Peace couldn't perform wedding ceremonies, your religion's pre-marital counseling demands would trump my own faith's and so forth. The gov't is *NOT* a religious organization. This is exactly the kind of hideously un-American thinking that leads to theocracy and oppression of religious freedom in other parts of the world.

[GrandEagle]

To my thinking, the constitution should stay within the narrow confines of regulating government behaviour rather than people behaviour.
I agree 100%. Our Constitution is the document whereby we the people grant our government its legitimacy. As you correctly pointed out, as with alcohol, it is not designed to and therefore does not function well, when we try to regulate people behavior.

[First_Salute]

Thank you for your reply 10, and God Bless.