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.
Not if 3/4 of the state legislatures approve it by a vote... it is reserved to the states to ratify... what a bunch of convoluted bull...
The nation's founding commitment is to the Constitution and the Amendment process is part of it. We are not under the Articles of Confederation...
Oh, you speak so true... They are quislings, agents of the enemy, cultural Marxists... liberal-tarians...
I would just say it was written by a traitor or an agent of the enemy, dispense with all the daggers amidst smiles, draw sword, and unseam them from the nave to the chops...
“This is just another example of how the perverse among us will try to sell the lie that the cure is worse than the malady in order to ensure the malady spreads to the point where it can't be cured.”If this hasn't already won quote-of-the-day honors, it should!
I agree. They are agents of the enemy...
Great response. Definitely demonstrates you debating skills.
Sure. I'd simply takes the existing state laws against pedophilia or bestiality or necrophilia or incest and modify them by substituting "homosexual sodomy" in the appropriate areas.
Yeah, and you see dead people, too. As with the Supreme Court, you infer a "right to privacy" when it comes to only one type of activity -- homosexual sodomy.
How is the "right to privacy" protected by the state or the federal government if we substitute gambling, or prostitution or drugs for homosexual sodomy? Why isn't this elusive "right to privacy" that you "see" protected in other activities that take place by consenting adults behind closed doors?
That's some constitutional "right" you see -- it covers activities that I can count on one hand with two fingers left over.
Unfortunately it would not fly in any court. The first laws you reflected , pedophilia, bestiality etc, do not discriminated against any group, since both males and females, black or white, heterosexual or homosexual seems prone to engaging in those illegal activities. Second, in each such case, the state can make a compelling argument that it has an interest in preventing those activities.
Unfortunately as we have discussed before, telling homosexuals they cannot engage in sodomy, while not prohibiting it by heterosexuals is simply a violation of due process, privacy, the right to equal protection of the law, and the right of association. Now, would you like to try actually writing a law you believe would pass the muster of the US Constitution?
It's laughable.
Ask yourself -- if the decision were left to the the states and every state banned gay marriage, would he then be content with the fact that constitutional principles were followed? We'd never hear from him again on gay marriage?
Not at all. I believe in the same right to privacy for everyone. I believe a married couple can do what they will in the privacy of their homes, and the same goes for homosexual couples. No more, no less. As long as that activity does not involve otherwise prohibited activities such as making a bomb, or endangering others, or conspiracy, the home is inviolate, without probable cause.
How is the "right to privacy" protected by the state or the federal government if we substitute gambling, or prostitution or drugs for homosexual sodomy? Why isn't this elusive "right to privacy" that you "see" protected in other activities that take place by consenting adults behind closed doors?
If a state has probable cause that illegal activities are occurring, the right to privacy may be breached, as stated in the 4th Amendment. But the police bear the responsibility to not only demonstrate probably cause, but that the activity is one that does not deserve any right to privacy. Sexual acts between two consenting adults does deserve a right to privacy. Bomb making does not. Use of illegal substances would not be protected as a "right" as long as probable cause justified the invasion.
That's some constitutional "right" you see -- it covers activities that I can count on one hand with two fingers left over.
Not at all, in fact. Any activity that is not otherwise prohibited falls within the scope of privacy when done in the home. That's as it should be. Would you accept the police coming into your home and looking around just for the hell of it? Is not your dinner table or your den no less inviolate than your bedroom? You have created a trap for yourself in your constitutional argument. If heterosexuals have a right to privacy, then by default so do homosexuals, since the right to certain privacy is a right for all, or for none. If you exclude homosexuals, you now deny them both due process and the equal protection of the law under the 14th Amendment.
"Pedophiles" aren't a group? They think they are. Hell, in the Netherlands, the pedophiles are forming a political party, making them more a "group" than even homosexuals!
So forget your "group" argument. And the compelling argument for prohibiting homosexual sodomy would be exactly the same argument as for the other activities I listed -- it's immoral, debasing, and destructive to society.
"Unfortunately as we have discussed before, telling homosexuals they cannot engage in sodomy, while not prohibiting it by heterosexuals is simply a violation of due process, privacy, the right to equal protection of the law, and the right of association."
I disagree. The law is against a specific behavior, not a group. We're not rounding up and arresting male homosexuals (be still, my heart). There's no law against being a male homosexual. The specific behavior prohibited does not interfere with being a male homosexual nor does that prohibition interfere with male homosexuals living their lives like any other citizen.
Same as with homosexual sodomy. Limp argument.
What kind of a weasel statement is that? Homosexual sodomy is an "otherwise prohibited activity". So is drug use, prostitution, and gambling.
The Alaska State Constitution contains a very specific protection of the "right to privacy". The Alaska Supreme Court has found that that this "right to privacy" protects drug use by adults in their home. Why hasn't the U.S. Supreme Court ruled likewise under the "right to privacy" that they found in the U.S. Constitution?
I agree. And it makes no difference if the illegal activity is drugs, prostitution, gambling or homosexual sodomy.
"but that the activity is one that does not deserve any right to privacy."
"Deserve"? Oh, that's rich. Well, OK, fine. Let's do it your way. Society has determined that homosexual sodomy, like drugs, prostitution and gambling, does not deserve the constitutional protection of the right to privacy.
"Sexual acts between two consenting adults does deserve a right to privacy"
Oops. No. The citizens of the State of Texas outvoted you and said it doesn't. Sorry.
"Use of illegal substances would not be protected as a "right" as long as probable cause justified the invasion."
Huh? Look, either an adult has a right to privacy to do drugs behind closed doors or they don't. What is it? Answer the question without weaseling. It's a straightfoweard question -- give me a straightforward answer.
"If heterosexuals have a right to privacy, then by default so do homosexuals, since the right to certain privacy is a right for all, or for none."
As I said before, if it was illegal to be a homosexual, then you'd have a point. The law does not prohibit homosexuality (be still, my heart). The law prohibits a certain type of immoral behavior.
"the author's arguments in support of Constitutional principle are but incidental"
paulsen:
-- if the decision were left to the the states and every state banned gay marriage, would he then be content with the fact that constitutional principles were followed? We'd never hear from him again on gay marriage?
If the question was, "can the state ban marriage", and every state prohibited marriage, -- would you two be content with the fact that constitutional principles were followed?
Face it, there is no principle that a State can prohibit marriage of any type.
No 'power to prohibit' has ever been delegated to any level of government in the USA. -- Reasonably regulate, yes. -- Prohibit, no.
Well, although this isn't the Netherlands, they could also form a political party here. They have the same First Amendment rights we all do. But unlike some other countries, they are forbidden from engaging in any sexual acts with children. And I did not realize the number of pedophiles in the US was greater than the number of homosexuals. Do you have a link?
So forget your "group" argument. And the compelling argument for prohibiting homosexual sodomy would be exactly the same argument as for the other activities I listed -- it's immoral, debasing, and destructive to society.
Well, just saying that is not going to make a law you want stand up. You must answer the question of why private homosexual behavior (which has been done throughout history) is any more destructive to society than private heterosexual behavior. That is your challenge.
The specific behavior prohibited does not interfere with being a male homosexual nor does that prohibition interfere with male homosexuals living their lives like any other citizen.
The prohibition of specific acts of sex between two males, or two females, while permitting exactly those same sex acts between two heterosexuals flies in the face of your claims of "immoral" "debasing" and "destructive to society". You have done no more than single out homosexual males while ignoring homosexual females and heterosexuals for doing exactly the same thing. Why is anal sex between two consenting heterosexuals any more moral, or any less debasing or any more danger to society than it would be between heterosexuals?
Then, please educate me. What would the argument be?
Society has determined that homosexual sodomy, like drugs, prostitution and gambling, does not deserve the constitutional protection of the right to privacy.
Only your [prohibitionist] faction of "Society" so claims. -- Those of us who defend Constitutional due process of law differ.
Look, either an adult has a right to privacy to do drugs behind closed doors or they don't. What is it? Answer the question without weaseling. It's a straightfoweard question -- give me a straightforward answer.
Yes, an adult has a right to privacy, -- to do drugs behind closed doors, to gamble behind closed doors, and to consensual sex behind closed doors; --- subject only to reasonable regulations made and enforced using due process of law as per the 14th Amendment.
Can you make a straightforward rebuttal, paulsen? Two bits you can't "without weaseling".
Really? Where?
What is the purpose of both the survivor's benefits and the tax breaks?
The assumption that is behind these benefits is that the couple are actually "one." Also, the benfits are designed to support families which are raising children and one or both are working less to nurture those children.
None of which applies in same sex couples.
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