Free Republic
Browse · Search
Topics · Post Article

Skip to comments.

Why We Need a Marriage Amendment
City Journal ^ | Autumn 2004 | Robert P. George, David L. Tubbs

Posted on 11/17/2004 3:48:58 PM PST by Ed Current

When President George W. Bush declared his support for a federal constitutional amendment defining marriage as the union of one man and one woman, his most vitriolic critics, such as Senator Edward Kennedy, accused him of playing a divisive, mean-spirited political game. The New York Times and Washington Post, supporters of the idea of same-sex marriage, raised a more sophisticated objection to the amendment: it betrays, they claim, the venerable principle of American federalism that respects states' relative autonomy in setting marriage policy. Interestingly, some prominent conservative opponents of same-sex "marriage," including California congressman Christopher Cox, were also skeptical about the amendment on federalism grounds. State voters could and would prevent the imposition of same-sex marriage, these critics argued. There was no need to nationalize the issue.

Despite its widespread appeal, the states' rights solution won't work. Without a federal marriage amendment, we're going to wind up with same-sex marriage in all 50 states. And here's why.

The federalism proposed by the liberal opponents of a constitutional amendment is in fact a sham. It is a contrivance for permitting liberal state judges, abetted by sympathetic justices on the Supreme Court of the United States, to foist same-sex marriage upon the whole nation.

In the traditional or classic understanding of American federalism—expressed in the Federalist Papers and reflected in the design of the Constitution—democratically elected state legislators represent the citizens who elect them. Those legislators enjoy wide authority to make laws relating to marriage and family life, and promoting public health, safety, and morals. Because the U.S. Constitution vests state lawmakers with such wide-ranging powers in these areas, on the classic view, courts must defer to state legislatures. Such deference is no mere courtesy or convention, but a constitutional duty. A judge may invalidate state legislation relating to marriage and family life or on public health, safety, and morals only if it conflicts with norms fairly derived from the text, logic, structure, or original understanding of the state or the federal constitution. As private citizens, judges may object to a law or policy on prudential or moral grounds, but as judges, they must distinguish the desirability—even the justice—of a policy from its constitutionality. Virtually all judges still pay at least lip service to this obligation.

Even so, state judges today ignore or circumvent it in practice with alarming frequency, so that the kind of federalism we increasingly have is not one of state legislatures but of state judiciaries. For this, the late U.S. Supreme Court justice William Brennan bears considerable blame. In an influential 1977 article in the Harvard Law Review, Brennan noted that state constitutions, like the U.S. Constitution, include provisions that convey important legal norms and principles in abstract-sounding language. Such provisions sometimes admit of multiple interpretations, especially when jurists ignore the relevant history and precedents. Brennan urged state appellate judges to interpret the state constitutional provisions expansively to secure individual rights, just as the Supreme Court had done under Chief Justice Earl Warren.

It was advice that many state-level judges proved eager to heed. In the years since Brennan wrote, state supreme courts—among them California's, Kentucky's, and Georgia's—have coined new rights or enlarged the scope of rights promulgated by the Warren and Burger Courts. Nowhere have the state courts run amok more wildly, however, than on same sex-marriage, an idea opposed by a sizable majority of Americans. In Hawaii, Alaska, Vermont, and now Massachusetts, judges have sought to redefine marriage, against the voters' will.

Can't states just deal with this judicial arrogance themselves, by flexing their federalist muscles? One prominent advocate of redefining marriage, Andrew Sullivan, says it's already happening (to his regret). He cites the following facts: 38 states have passed legislative bans on same-sex marriage; four states have already amended their constitutions to the same end (with an overwhelming 70 percent of Missouri voters endorsing a state constitutional ban this past August); and roughly a dozen states have scheduled referenda to consider similar amendments. It's just Republican scare tactics to say that any state that doesn't want same-sex marriage will have to accept it, claims Sullivan. Representative Cox also cites these numbers in an effort to convince the American public that the proposed amendment is unnecessary.

Regrettably, these state-level political efforts ultimately won't stop the march to redefine marriage. The reason: the Supreme Court is almost certain to nationalize the issue and make same-sex-marriage legal from coast to coast. Everybody knows about the Court's judicial activism in recent decades. That activism has reached its highest pitch in promoting the agenda of the sexual revolution. Same-sex marriage is merely the latest goal in that revolution.

As the self-appointed enforcer of elite opinion in sexual matters, the Court will have several means at its disposal to impose its views. First, if a state irrevocably establishes same-sex marriage, homosexual couples from states that don't permit such unions will flock there to obtain marriage licenses, and then sue to have them recognized by their home states. To resolve the conflict, the Supreme Court might apply Article IV, Section 1 of the Constitution, setting forth that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." The Court could read that clause to override the authority of the states and to invalidate the federal Defense of Marriage Act (1996)—even though that legislation passed with huge congressional majorities (342 to 67 in the House and 84 to 15 in the Senate).

A second possible route to same-sex marriage follows the line of privacy decisions that began with Griswold v. Connecticut in 1965, striking down a Connecticut anti-contraception statute. The statute, it's worth recalling, was actually an example of federalism at work. Despite the efforts of zealous pro-contraception lobbyists, the Connecticut legislature chose not to repeal the state's legal restrictions on birth control pills and devices. Other states had laxer laws, but according to the old federalism, each state could decide for itself what was required to uphold the public interest in a decent local moral ecology. In Griswold, the Court said no, every state must permit contraception. The Court nationalized the issue and dictated a uniform policy for the states.

The Court held that the Connecticut law violated an "unenumerated" right to marital privacy. Bizarrely, this right was said to reside in "penumbras formed by emanations" from specific guarantees in the Bill of Rights. The justices knew that this type of quasi-metaphysical claim was unprecedented, and they knew, too, that critics would see it as a mere rationalization for the judicial usurpation of state legislative authority. In powerful dissents, Justices Hugo Black and Potter Stewart accused their colleagues of just such usurpation. Nevertheless, seven justices, determined to strike down a law that they believed was out of line with enlightened opinion about sex, conjured up a new constitutional formula to do so, even as they still pretended to respect traditional norms of constitutional interpretation.

Within a decade, the Supreme Court lost its remaining inhibitions about making policy, especially when it came to sexual and "life-style" matters. Notoriously, the justices transformed the right of "marital privacy" in Griswold into an individual privacy right encompassing both contraception and abortion. Even a liberal legal thinker like Jeffrey Rosen acknowledges that the Court's abortion decision in Roe v. Wade (1973) was a bridge too far, indefensibly contorting the Constitution to nationalize an issue and take it out of voters' hands. In the 1992 Casey decision reaffirming Roe, the Court went even further in its defense of "life-style" freedoms: "At the heart of liberty," wrote Justices Souter, O'Connor, and Kennedy, "is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

Will a Supreme Court capable of such reasoning—a Court that has refused to accept state differences in laws on contraception or abortion—indefinitely tolerate a federalist approach to marriage policy? It's extremely unlikely. On the "modern" view, after all, shouldn't one's choice of whom to marry be considered a fundamental privacy right like abortion, protected from government meddling? If a man wants to wed a man, or a woman a woman, what right do other people have to deem that unacceptable? Isn't same-sex marriage a concept of "existence" or "meaning," and thus, on Casey's view, a right?

Perhaps the Court will be reluctant to impose same-sex marriage at the first chance. For various reasons, including the strong public resistance to redefining marriage, it may temporize. But temporizing isn't principled self-restraint or a forthright acknowledgment of constitutional boundaries. The Court might just bide its time until more of the public becomes receptive to the idea of same-sex "marriage"—something that might occur after a few other state supreme courts mandate it.

Were it not for judicial overreach, we would not be having a national debate on same-sex marriage. That we are having one raises troubling questions about the condition of democratic self-government in America today. For defensive reasons, therefore, we need a federal marriage amendment.

But one can also make a strong positive case for an amendment. After all, the idea of same-sex marriage would have seemed outlandish only a few years ago, and today only a minority, led by an elite of academics, journalists, entertainers, and, of course, state and federal judges and their clerks, gives the idea any credence. The vast majority of Americans holds as self-evident the truth that marriage between a man and a woman is a fundamental institution of a free and democratic society. And in a free and democratic society, they have the right to enshrine that truth in their constitution.

TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; News/Current Events; US: Massachusetts
KEYWORDS: marriage

Why We DON'T need a Federal Marriage Amendment

Restoring the "traditional or classic understanding of American federalism" will require voters to focus on the problem. The Brennan legacy and the malevolent, unconstitutional deviation from the text of the 14th Amendment are the problems, and not the U.S. Constitution nor the States' Constitutions!

For the history and thorough refutation of the Incorporation Doctrine, see the following: The Ten Commandments and the Ten Amendments: A Case Study in Religious Freedom in Alabama, 49 Ala. L. Rev.434-754 (1998)., Jaffree v. Board of School Commissioners of Mobile County (1983), Rehnquist's Dissent in Wallace v Jaffree (1985) ,Government by Judiciary: The Transformation of the Fourteenth Amendment, Second Edition, Raoul Berger, Forrest McDonald , Liberty Fund, Inc.; 2nd edition (June 1997), The Fourteenth Amendment and the Bill of Rights; The Incorporation Theory, Charles Fairman, Stanley Morrison, Leonard Williams Levy, Da Capo Press , January 1970

Take what isn't broken, the various Constitutions, and fix the various courts which are broken.

As Matthew J. Franck, Chairman and Associate Professor Of Political Science, Radford University stated before the House of Representatives, Subcommittee on the Constitution, Committee on the Judiciary, Washington, DC. January 29, 1998, Congress, the Court, and the Constitution:

My opposition to amending the Constitution to deal with our difficulties is not rooted in mere reverence for the framers' handiwork if evidence shows its insufficiency in some respect. No institutions crafted by human beings can be truly permanent, never requiring any alterations. Yet the Constitution, as Joseph Story said, was ''reared for immortality, if the work of man may justly aspire to such a title.'' Before we take risks with a structure whose ''foundations are solid'' and whose ''compartments are beautiful, as well as useful'' (again Story's words),(see footnote 155) we should explore the building thoroughly and be certain we have not overlooked any of the useful features it already contains.

Those who have a vested interest in the judiciary, all liberals and many conservatives, conveniently overlook numerous features the U.S. Constitution contains to constrain the federal judiciary. The most common approach is jurisdiction stripping, as stated in Article 3, Section 2, Clause 2 and explained in Federalist No. 81.

Taking the advice of The Federalist #48: "It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it;" the 107th Congress (2001-2002), used the authority of Article III, Section 2, clause 2 on 12 occasions to limit the jurisdiction of the federal courts. Article III, Section 2 - The Washington Times: Editorials/OP-ED

Protecting Marriage From Judicial Tyranny by Ron Paul Since the Marriage Protection Act requires only a majority vote in both houses of Congress (and the president's signature) to become law, it is a more practical way to deal with this issue than the time-consuming process of passing a constitutional amendment. In fact, since the Defense of Marriage Act overwhelmingly passed both houses, and the president supports protecting state marriage laws from judicial tyranny, there is no reason why the Marriage Protection Act cannot become law this year.

H.R. 3313 passed the U.S. House 233 - 194 on 7/22/2004.

An amendment requires 38 states plus the following votes in the U.S. Congress:

290 in the House which is 71 more votes than a simple majority. The GOP has 231.
67 Senators which is 16 more votes than a simple majority. The GOP has 55.

The 109th Congress could reintroduce the Marriage Protection Act, which would have a much greater chance of passing the Senate than an amendment.

The legal arguments for jurisdiction stripping presented to the U.S. House:

Massachusetts is attempting to correct judicial tyranny with the Article 8 Alliance:

Article 8 of the Declaration of Rights -Massachusetts Constitution: "In order to prevent those, who are vested with authority, from becoming oppressors, the people have a right, at such periods and in such manner as they shall establish by their frame of government, to cause their public officers to return to private life. . ." Language of bill of address, sponsored by Rep. Emile J. Goguen (D-Fitchburg), NOW before the Massachusetts Legislature:

Resolved, That both houses of the legislature hereby request the Governor by way of address, under the provisions of Article I of Chapter III of Part the Second of the Constitution, to remove Margaret H. Marshall, Chief Justice of the Supreme Judicial Court, from her office, to remove John M. Greaney, Associate Justice of the Supreme Judicial Court, from his office, to remove Roderick L. Ireland, Associate Justice of the Supreme Judicial Court, from his office, and to remove Judith A. Cowin, Associate Justice of the Supreme Judicial Court, from her office.
The bill is still in the House Rules Committee. It's been gaining support. But the leadership may not allow it to be voted on during this session. If necessary, we will have it immediately re-filed.

The "text, logic, structure, or original understanding of the state or the federal Constitutions" must be adhered to, and the "traditional or classic understanding of American federalism" must be restored sooner than later. "The federal courts derive their judicial power from Congress, not the Constitution." Turner vs. Bank of North America 4 Dall. (4 U.S.,8(1799))

After the Marriage Protection Act becomes law proceed with: "Life-Protecting Judicial Limitation Act of 2003 To provide that the inferior courts of the United States do not have jurisdiction to hear abortion-related cases;" to eliminate Impeach Judge Hamilton - The Washington Times: Editorials/OP-ED ... On Tuesday, U.S. District Judge Phyllis Hamilton of California declared unconstitutional the Partial-Birth Abortion Ban Act passed overwhelmingly by Congress and signed scant months ago by the president, while being supported by 75 percent of the public. Each member of the House should draw up articles of impeachment against Judge Hamilton or co-sponsor such a resolution. Those who do not should be prepared to explain why they are willing to let such an outrage against decency and the rule of law go unchallenged

Four agruments that are critical to making the transition from a Unitied State back to the United States:

The Avalon Project : Federalist No 78

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power 1 The celebrated Montesquieu, speaking of them, says: "Of the three powers above mentioned, the judiciary is next to nothing.'' "Montesquieu: The Spirit of Laws.'' vol. i., page 186.

The Avalon Project : Federalist No 51

But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Voters must explain to their Republican politicians that a republican government functions by the rule of law and not by the deviant sentiment of rogue judges, and their acolytes and apologists colluding to form a judicial oligarchy.

WallBuilders | Resources | Republic v. Democracy
A pure democracy operates by direct majority vote of the people. When an issue is to be decided, the entire population votes on it; the majority wins and rules. A republic differs in that the general population elects representatives who then pass laws to govern the nation. A democracy is the rule by majority feeling (what the Founders described as a "mobocracy" 12); a republic is rule by law.
A republic is the highest form of government devised by man, but it also requires the greatest amount of human care and maintenance. If neglected, it can deteriorate into a variety of lesser forms, including a democracy (a government conducted by popular feeling); anarchy (a system in which each person determines his own rules and standards); oligarchy (a government run by a small council or a group of elite individuals): or dictatorship (a government run by a single individual).

Voters must demand that politicians assume the responsibilty of their office, adhere to their oath and end judicial tyranny:

"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve." The Avalon Project : President Jackson's Veto Message Regarding ...




1 posted on 11/17/2004 3:48:58 PM PST by Ed Current
[ Post Reply | Private Reply | View Replies]

To: Ed Current

I find that whole "mystery of life" thing fascinating in this context. Of course homosexuality dead ends the life process.

2 posted on 11/17/2004 3:52:23 PM PST by The Ghost of FReepers Past (Legislatures are so outdated. If you want real political victory, take your issue to court.)
[ Post Reply | Private Reply | To 1 | View Replies]

Comment #3 Removed by Moderator

To: Made in USA

Thanks for this piece! It superbly explains the idiocy behind what we're up against.

Quote: "Were it not for judicial overreach, we would not be having a national debate on same-sex marriage. That we are having one raises troubling questions about the condition of democratic self-government in America today."

And unless something is done to restrain our out-of-control judiciary - we're going to lose America. Because when the judiciary creates laws counter to what the Constitution and the people desire, America as it was founded ceases to exist. It's that simple.

We are being incrementally terrorized by humanistic socialism in the guise of liberalism and the good news from this past election is that more and more people are beginning to get involved.

Liberals in the sixties proclaimed God is dead. Conservatives of the new millenium need to proclaim liberalism is dead.

4 posted on 11/17/2004 5:08:21 PM PST by SeasideSparrow
[ Post Reply | Private Reply | To 3 | View Replies]

To: SeasideSparrow

And unless something is done to restrain our out-of-control judiciary - we're going to lose America.

Mr. Sandler and Mr. Schoenbrod offer measures that they believe would restore politically accountable law, but American democracy might be too far gone. The will to fight has departed from legislative bodies, and the American people are distracted and uninformed. Legislators, mayors and governors have learned they can avoid making political enemies by letting judges decide divisive issues.- Democracy by Decree | by Ross Sandler and David Schoenbrod

5 posted on 11/17/2004 6:56:46 PM PST by Ed Current
[ Post Reply | Private Reply | To 4 | View Replies]

To: MHGinTN; Coleus; nickcarraway; narses; Mr. Silverback; Canticle_of_Deborah; ...
Pro-Life Pro-Family PING

Please FreepMail me if you want on or off my Pro-Life Ping List.

6 posted on 11/17/2004 11:11:46 PM PST by (The Missing Key of The Pro-Life Movement is at
[ Post Reply | Private Reply | To 1 | View Replies]


Thanks for the ping. Great article.

7 posted on 11/17/2004 11:18:29 PM PST by lara
[ Post Reply | Private Reply | To 6 | View Replies]

To: Ed Current

If the house and senate refuse to pass a marriage amendment bill; then we have the option of going around this dead horse, and calling on the state legislatures to call for a constitutional convention, for the sole purpose of writing a marriage amendment. If 2/3 of the legislatures agree, then each legislature picks 2 representatives to the convention, the amendment is written and agreed upon, and sent out to the states to ratify. 38 states need to ratify an amendment to amend the constitution.

38 states already have passed laws that limit marriage between one man and one woman.

This could be a great grass roots endeavor! Much like the California recall, but nationally. It would put our elected officials on notice, that the will of the people can not be ignored!

We must exorcise our rights, or we will lose them.

8 posted on 11/18/2004 2:50:23 PM PST by tuckrdout (You lose your right to complain about taxes, if you voted for any democrat!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: tuckrdout

state legislatures to call for a constitutional convention, for the sole purpose of writing a marriage amendment.

IF & ONLY IF you could CONFINE it for that sole purpose.

Is a Con Con Hidden in Term Limits? -- May 1996 Phyllis Schlafly ...

Con Con More Dangerous Than Congress

The advocates of a Constitutional Convention assert that a Convention couldn't do any more mischief than our mischievous Congress. This is false for many reasons.

  1. Delegates to a Constitutional Convention do not have to swear to uphold and defend the U.S. Constitution, and would therefore be free (like the 1787 Convention Delegates) to throw out our existing Constitution and start from scratch with a completely new document. Congress, on the other hand, is bound by Article VI of our present Constitution, which requires every Member to take an oath to support our present Constitution.
  2. Congress must muster a two-thirds majority in both the House and the Senate in order to propose any constitutional change. No one knows whether or not a Con Con would have a two-thirds (or simple majority) rule, and we can't know until the Convention is actually convened and adopts its own rules of procedure.
  3. Any action by Congress must pass two Houses. Since a Constitutional Convention would not have two Houses, the big-population states would control the Convention and the small-population states would be irrelevant.
  4. Delegates to a Constitutional Convention will never run for re-election, so they would be as free from accountability to the voters as the life-tenured federal judges.
  5. We know for sure that any constitutional change voted out by Congress will not become part of the U.S. Constitution unless it is ratified by 38 of the 50 states. No one knows for sure whether or not this requirement would be true for actions taken by a Constitutional Convention. If a Con Con can change other portions of the Constitution, what is to prevent it from reducing the Article V requirement that ratification requires three-fourths of the states (just as the 1787 Convention reduced the ratification requirement from 100% to 75%)?

9 posted on 11/18/2004 3:02:42 PM PST by Ed Current
[ Post Reply | Private Reply | To 8 | View Replies]

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.

Free Republic
Browse · Search
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794 is powered by software copyright 2000-2008 John Robinson