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.
These clowns have no interest in either learning or in even defending their position in anything resembling a coherent manner. One of the idiots keeps trying to get me banned for defending the Constitution. Fortunately visitors may pick up on some tips so it may not be totally wasted. Hang in there.
No 'power to prohibit' has ever been delegated to any level of government in the USA. -- Reasonably regulate, yes. -- Prohibit, no
I would suggest that my arguments thus far in regards to "prohibition" have defeated yours head on...
Now, let me offer an alternate argument -one that instead of taking the "prohibition" issue head on -cuts it off at the knees by concluding said issue of "prohibition" is actually a non-issue in regards to legislation and only applicable to judicial activists...
RE: the Amendment we discuss. Based upon my interpretation which hinges principally on one word, "construe", which I assume was chosen specifically and intentionally I would disagree with any who proclaim a potential "prohibition" of federal or states in regards to marriage.
ARTICLESECTION 1. This article may be cited as the ‘Marriage Protection Amendment’.
SECTION 2. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.’’.
CONSTRUE: To adduce or explain the meaning of; interpret...
In my opinion the Amendment simply prohibits a judiciary the ability to construe a marital construct and leaves open the question legislatively at both federal and state levels...
I'm asking you, why doesn't the constitutional right to privacy extend to those six? Please answer my question.
It does extend, but States ignore such protections if the higher courts 'look the other way'. -- Everyone knows this, but prohibitionists & their straight [ahem] 'men' prefer to imagine that they don't.
What? Of course they can. It's done all the time.
Read much rob? Everyone knows "it's done all the time", but prohibitionists & their straight [ahem] 'men' prefer to imagine that they don't.
MAC
These clowns have no interest in either learning or in even defending their position in anything resembling a coherent manner.
You got that right. They are here to post 'agitprop'.. I think the owner keeps them around as punching bags.
One of the idiots keeps trying to get me banned for defending the Constitution.
They try to goad you into using 'personal attack' language.. Gotta watch it.
Fortunately visitors may pick up on some tips so it may not be totally wasted. Hang in there.
Will do.. Thanks.
Not only unknown to the states, but to the Congress and the USSC! For 100 years after it was ratified!
Try reading some history, robbie:
"-- The debate over whether the Fourteenth Amendment makes applicable against the states all of the protections of the Bill of Rights is one of the most important and longest-lasting debates involving interpretation of the U. S. Constitution.
The Supreme Court's first interpretation of the scope of the Fourteenth Amendment, adopted in 1868, was rendered in The Slaughterhouse Cases just five years later. By a 5 to 4 vote the Court in that case narrowly interpreted the Privileges and Immunities Clause, thought to be the most likely basis for enforcing individual rights against states.
In subsequent cases, attention focused on the Due Process Clause.
Beginning in the early twentieth century the Court began to selectively incorporate some of the specific provisions of the Bill of Rights while rejecting the incorporation of others. --"
They all still thought the BOR applied only to federal government. The unenlightened fools!
Fools they indeed were for ignoring the words of Article VI:
"-- every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. --"
"-- every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. --"
Thank you for that reminder. It is in my keeper file. I continue to believe they knew it, but in order to maintain the Union, simply overlooked it. Slavery was of course the key issue, and any enforcement of rights would have required the government to address slavery in a way they were neither militarily prepared to do, nor politically motivated. Instead they fought it out in Congress over the territories. And the USSC simply went along for the ride.
SECTION 1. This article may be cited as the 'Marriage Protection Amendment'.
SECTION 2. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.''.
CONSTRUE: To adduce or explain the meaning of; interpret...
In my opinion the Amendment simply prohibits a judiciary the ability to construe a marital construct and leaves open the question legislatively at both federal and state levels...
In my opinion the Amendment attempts to prohibit the judiciary from having the ability to interpret marriage or the legal incidents thereof to be anything other than the union of a man and a woman, and would also effectively close the question legislatively at both federal and state levels...
To me, its a tempest in a teapot.
The problem I have with it is (federalism issues aside), if a state supreme court legitimately finds that the state constitution is being violated for whatever reason, the FMA would seem to prevent that judiciary from so ruling. That could result in the state being in compliance with the US Constitution but not in complaince with their own. The obvious cure is to change the state constitution, and if they do, fine, then the FMA is meaningless. But if they can't we have created a constitutional crisis within the state that is unnecessary. Massachusetts is of course, the prime example. Since their court ruled traditional marriage unconstitutional they have written a good amendment to cure the issue, but the legislature is unableto push it through because of its constituency. This is a problem of Massachusetts and not of any other state unless DOMA comes under fire, which it has not. This is why I oppose it.
To me, its a tempest in a teapot.
Just when I think I am out -you pull me back in again!
Do you not realize this is about protecting our nations vital fluids from the communist menace!
/end sarcasm.
I do not see legislative bodies having their hands tied by the Amendment and I would suggest such a hand tying if perceived would be legally challenged by any legislative body wishing to consider legislation with regards to marriage in the case of anything other than the union of a man and a woman. Checks & balances work -in my opinion, this Amendment is but a legislative check on the judiciary.
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