How about the orphans that these guy are planning to adopt:
Posted on 06/01/2006 8:28:01 AM PDT by Sunsong
Today the Cato Institute is publishing a paper I've written on why a federal amendment banning gay marriage is a bad idea, even if you oppose gay marriage. Of course, if you think recognizing same-sex marriages is a good idea, that's a strong reason by itself to oppose an amendment banning them. This paper is written for conservatives and moderates who either oppose or are unsure about same-sex marriage. Here's the executive summary:
Members of Congress have proposed a constitutional amendment preventing states from recognizing same-sex marriages. Proponents of the Federal Marriage Amendment claim that an amendment is needed immediately to prevent same-sex marriages from being forced on the nation. That fear is even more unfounded today than it was in 2004, when Congress last considered the FMA. The better view is that the policy debate on same-sex marriage should proceed in the 50 states . . . .
A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it, on grounds of federalism, confidence that opponents will prevail without an amendment, or a belief that public policy issues should only rarely be determined at the constitutional level.
There are four main arguments against the FMA. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.
Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.
Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.
Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.
The paper goes into some detail responding to the common arguments for a federal amendment on this issue, most prominently the facile judicial-activism argument. You can read the whole thing here. While there is a reasonable (though ultimately unpersuasive) argument to be made against gay marriage as a policy matter, the case for a constitutional amendment is very weak. And it is weak for good conservative reasons.
I'll be in Washington on Monday speaking to Cato and the Center for American Progress, as well as to congressional staff, about the proposed amendment. When the schedule is available publicly, I may update this post to let you know more.
Clearly your premise is severely flawed if you consider the fact that anybody can engage in homosexual activity such that there is no "segment" to speak of... All citizens are treated equally whether or not they choose to engage in homosexual activity.
Either you are not aware of the facts or you are simply arguing for special rights premised solely upon ones ability to declare a preference for or choose to engage in homosexual activity -activity that society has never considered beneficial in any regard whatsoever...
Homosexual sex is a procreative dead end and a societal health hazard -period...
That's an interesting question. Today the states clearly have the power over marriages, but after the amendment they would not. The only other usurpation I have seen was the ludicrous 18th Amendment. I don't know if there were any challenges to that or not. But I don't mean to imply the 10th Amendment is inviolate. But it does represent one of the most important aspects of our republic, federalism. I'm very much against tampering with that.
This amendment might be different in that in addition to usurping the just powers of the states, depending on the wording of the amendment, it may in fact violate the 14th Amendment. If it is narrowly defined just for the institution of marriage, it my be alright, as keeping marriage between a man and a woman is not in violation of the 14th Amendment. Extending it in any way however to other kinds of associations or arrangements would certainly violate the 14th. This will be a first.
Your Constitutional analysis, I have to say, is really something. I'm sorry I implied you were stupid.
No problem. We've both traded barbs. Not that I enjoy it.
I surrender!
Great. Let's convene at Yorktown for a beer.
The author is reaching for straws and obviously supports homosexual marriage.
The author knows nothing about the interaction of marriage, children and law.
The federal marriage amendment IS not an intrusion into states rights it actually enhances states rights.
Sad.
Seems the Cato author suffers from betway disease.
Obviously I am not explaining myself. I'll try again. We are dealing with 2 issues here, the powers of the states under the Tenth Amendment, and the rights of its citizens (persons). I am against the usurpation of any of the states' just powers. At the same time I fully support the recognition of all of rights enumerated in the Bill of Rights and the other amendments.
When there is a conflict, the rights of the individual must prevail. States are free to create laws as long as those laws do not infringe on the rights of its citizens.
That is why there is absolutely no inconsistency with my concurrence with Lawrence or Loving, and still not wanting to see the federal government take over a state's power to handle marriage however it sees fit.
But why cant the Federal Govt therefore *also* decide to make sure all 50 states have a consist definition of marriage that advances that legitimate state interest?
Oh, it can most definitely do that. The Constitution was amended to prohibit liquor sales, so however absurd, the Constitution can be amended. The question is why? It is not a legitimate concern of the federal government, but only of states. And if a state chooses to define marriage in a different way, it has that power. As long as neither the federal government nor any other state has to recognize it, so be it. I simply would not move to Massachusetts.
FMA should be debated on its substantive merits/demerits and not on rather weak and inconsistent claims about Federalism.
I agree, which is what I have been doing most of the time. Federalism is simply one of the reasons to think about the impact of the amendment, that's all. There are many reasons for not supporting this amendment.
Hah. I'd love to. I get around Williamsburg every now and then. Take care.
"There was NO problem with the Massachusetts state constitution... the problem was with 4 Mass supreme Court justices who wilfully IGNORED the Mass state constitution to make that state imposed gay marriage."
"Well I don't know the exact reason for the ruling, but I notice it was a 4 to 3 decision, indicating that it is a weak one from the getgo"
Weak is not the word. It was a pure act of Judicial imperialism. They used the ERA clause in the Massachusetts constitution, despite the fact that the ERA proponents repeatedly and explicitly asserted during passage that it would never ever cover this exact situation, to make it say something it does not say.
There is explicit language in law and in the constitution that directly contradicts what the Judges decided ...
But they did it anyway.
They had a 'landmark' ruling to make, and 4 liberaql judges didnt want pesky notions like textual analysis, original intent, rule-of-law or judicial restraint get in the way of their desire to rewrite Massaschusetss marriage law to conform to their politically correct notions of what marriage should be.
Legally weak, yes, but an act of judicial over-reach.
"That is clearly a fixable problem and does not need a US constitutional amendment."
"Such a problem exists on the Federal level as well."
"I don't know how. "
I meant by that the following: that the problem judicial imperialism exists at the Federal level as well. Wrong-headed rulings based on flawed 14th amendment jurisprudence could easily create across the US what is happening at the State level.
"Yes, many who are opposed to FMA are liberals and those with a homosexual agenda. There are however, many conservatives who support our republican form of government far more than any emotional and personal biases."
I'd believe you were sincere if you werent also approving Lawrence v Texas and other similar rulings, which clearly tramples on state's right. Federal power over states is in every nook and cranny of our governmental system.
FMA is far less of an intrusion than the other 95% of what Federal Govt does to states, including family law.
"Almost every supporter on these boards has for years screamed loudly at the growing power of the federal government, claiming a strong central government is the basis of liberal thought."
FMA doesnt increase the power of the Govt at all, at any level. It doesnt raise taxes, increase spending or force any citizen to do something they wouldnt otherwise do. There is no coercion. There is merely the matter of what Govt recognizes as marriage. This is a matter of declaring self-evident points to support an important concept - the family.
FMA is not more dangerous than the words "We the people ... " in the preamble.
No, it is a premptive measure if more and more states approve of same sex marriage or civil unions. This is more than just a social or academic issue. It has major financial implications for federal government programs. The DOMA was passed to avert such a problem. Specifically,
"Section 7. Definition of 'marriage' and 'spouse'
"In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife."
SS and Medicare, federal pensions and survivor benefits, etc. will be affected if DOMA is challenged in the SCOTUS and DOMA is ruled as being unconstitutional.
Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.
A constitutional amendment would move the debate down to the state level as part of the process of amending the Constitution. It is more democratic than allowing the courts to make the final decision as was the case in Mass.
Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.
Nothing is foreclosed. The states can choose not to approve the amendment either through their legistlatures or referendum. It is far more democratic than the way Roe VS Wade was decided.
"I am against the usurpation of any of the states' just powers"
If you approve of the Federal Govt defining what states can and cant do in the matter of laws about sex, why arent laws about marriage any different? And we are not talking a Congressional bill, we are talking a Constitutional Amendment, which has to be passed by ... the *States*.
You have a cafeteria-style concept of States Rights.
you argue:
"When there is a conflict, the rights of the individual must prevail. States are free to create laws as long as those laws do not infringe on the rights of its citizens.That is why there is absolutely no inconsistency with my concurrence with Lawrence or Loving, ..."
In generalities, it's reasonable, but in specifics,
I'd have to respectfully disagree. Lawrence v Texas was a clear usurpation of states' power, and yet you approve of it. The constitutional basis for the ruling was slim-to-none, a bunch of vague nostrums strung together that pointed, as the whole line of bad constitutional law (taht includes Roe v Wade) based on that oxymoronic "substantive due process". But there is no right that was acutally infinged in Lawrence. There is no constitutional right to sodomy in the Bill of Rights, nor a constitutional right to "privacy" that is defined as doing whatever you want in your own bedroom. Such a concept is contrary to the text, meaning, and intent of the Constitutional and amendment authors. And the unintended consequences of following such an error will be far more serious violations of states' rights and powers and further undermining of democratic Government and replacement with a judicial imperialism.
You cant have it both ways. Lawrence may be justified at some level, but it is in no way consistent with a claim that Federalism should inhibit Federal action in these related matters. Likewise, Loving v Virginia, imho correctly decided, yet a compelling counterpoint to FMA, as the Federal courts clearly have decided what all 50 states need to do on this matter.
You key it off the bill of rights concerns, but that's nore the real legal reasion Federalism trumps the states. That trumping happens based on what is in the Constitution (supposedly).
"But why cant the Federal Govt therefore *also* decide to make sure all 50 states have a consist definition of marriage that advances that legitimate state interest?"
"Oh, it can most definitely do that. The Constitution was amended to prohibit liquor sales, so however absurd, the Constitution can be amended. The question is why?"
Good question! A far more useful point to get to than the bogus arguments on the Federalism point.
" It is not a legitimate concern of the federal government, but only of states. "
Well, that is a point of disagreement.
Why should the Federal Govt care about marriage and family?
We are a mobile nation. We have in law the 'full faith and credit' clause. We have 20+ states who have affirmed in constitution, and 49 states who have as a matter of current law to *not* have gay marriage. Only 1 man and 1 woman can get married, and in most all states they cannot be first cousins. So there are rules. Gay marriage is such a drastic departure from the norms of what most states have or want, that the level of disharmony in the law will create many many problems in family law when such cases of gay marriages are formed in one state and get litigated in another.
That's just one aspect of it, there are many other reasons.
"But if you can stop laughing a bit, there are many zealots here who would make sure that homosexuals had no rights. Their right to association, privacy, due process and equal protection of the law would be unrecognized for that group of citizens."
"No rights"? I don't think anyone in America would go beyond outlawing sodomy, and they are wrong and zealots and far from a majority. ... but such a scenario leaves gays with rights in areas except in the matter of sexual behavior. so "no rights" is hyperbolic.
It seems that in the pendulum from strict outlawing, to mild social disapproval, to tolerance, to acceptance, to enforced acceptance, to forbidding dissent/disapproval of the practice. Our cultural and legal pendulum has been swining past the tolerance/acceptance point and into regions that give 'rights' to gays by taking them away from others.
Example, 'right of association' is a curious one to put in there in your list. The 'right to associate' for gays has not been infringed much in recent decades as it once was. Now, the gay 'rights' lobby has put in 'equal protection' rules to forbid, say a landlord from discriminating against homseexual couples wanting to rent. sounds fine, until you think of those who might have a duplex and have moral objections to renting to gay roommates ... So "right to association" goes out the window for those folks. That sure looks like an example of 'special rights'.
Now, in Europe and Canada it is going even further, where making statements disapproving of homosexual behavior and calling it immoral is classed as hate speech and outlawed. So, rights of free expression are being discarded.
That's not advancing freedom. That's replacing one set of prejudices for another!
"Such a problem exists on the Federal level as well."
"I don't know how. At the federal level, the Defense of Marriage Act protects the federal government and all other states. The legal challenges have all been completely successful."
Evidence that out-of-control liberal judges on the Federal bench *can* cause trouble at the federal level:
http://www.stateline.org/live/ViewPage.action?siteNodeId=136&languageId=1&contentId=20695
"A federal judge in Lincoln, Neb., struck down the state's same-sex marriage ban May 12, 2005. The ruling is being appealed by the state to the U.S. Court of Appeals for the 8th Circuit."
Bear in mind that "federal power" not only covers federal laws made by Congress but also includes rulings by the USSC. Abortion, sodomy, eminent domain, free speech issues (nude dancing), religious displays, etc., were all USSC decisions imposed on the states. Congress had nothing to do with it.
So, it's possible that same-sex marriage will come about because of some "rights" issue decided by the USSC, not necessarily a law. Rather than an amendment, I'd like to see Congress pass a law stripping courts of jurisdiction to rule on same-sex marriage cases.
TransGender! Isn't that one of the X-Men?
Like preventing them from being scout leaders and going on overnight camping trips? That's wrong? You would allow that?
Do you believe in freedom of association? May an apartment owner refuse to rent to gays? May a restaurant refuse to serve gays? May an employer refuse to hire gays?
"We insist people get help who are sexually attracted to young boys.
We insist people get help who are sexually attracted to their siblings, moms, dads etc.
Then why is it a No No to insist people get help who are sexually attracted to the same sex?"
Because the first two examples you give are illegal; the third is not.
States rights have been eroding since the passage of the 14th amendment. States have been forced to go along with Congressional laws and USSC rulings for over 100 years.
Along comes the issue of same sex marriage, and suddenly people "find" their conservative roots and start crying "states rights!". What a bunch of baloney.
I see the same thing on the drug threads -- it's nothing more than a step towards nationwide legalization (legalizing drugs at the state level will never work -- and they know it. I suspect they know the same to be true for same-sex marriage laws).
My heavens! That ... that would mean the entire U.S. Constitution is a massive usurpation of state powers!
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