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Against a constitutional amendment banning gay marriage
The Volokh Conspiracy ^ | June 6, 2006 | Dale Carpenter

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.


TOPICS: Constitution/Conservatism; Culture/Society; Extended News; Government; Miscellaneous; News/Current Events; Unclassified
KEYWORDS: cato; crevolist; fma; gaymarriage; homosexual; homosexualagenda; homosexuals; leftists; liberals; liberaltarians; libertarians; perverts; pervertspervert; quislings; samesexmarriage; traitors; wadlist; warongenesis; wodlist
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To: WOSG
This essay is just trying to talk people down from standing up for marriage,

Your opinion of the motives of the author are noted,,,and discarded.

21 posted on 06/01/2006 9:31:29 AM PDT by Protagoras ("A real decision is measured by the fact that you have taken a new action"... Tony Robbins)
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To: Protagoras

My post was a reference to the fact that the Cato Institute - nominally a libertarian think tank - champions every possible aspect of the homosexual legislative and social agenda.


22 posted on 06/01/2006 9:31:51 AM PDT by wideawake
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To: sittnick

If it's not stated explicitly, it can be interpreted away.


23 posted on 06/01/2006 9:33:39 AM PDT by DungeonMaster
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To: wideawake
My post was a reference to the fact that the Cato Institute - nominally a libertarian think tank - champions every possible aspect of the homosexual legislative and social agenda.

Nonsense. Perhaps it looks that way from your perspective, but that doesn't make it true.

24 posted on 06/01/2006 9:35:34 AM PDT by Protagoras ("A real decision is measured by the fact that you have taken a new action"... Tony Robbins)
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To: Sunsong

I will agree with this argument the moment that CA Prop. 187 is finally implemented in all aspects.

*Waiting for hell to freeze over.....*


25 posted on 06/01/2006 9:41:03 AM PDT by Politicalmom (If fences don't work, why is there a fence around the White House?)
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To: Lekker 1
"He/she simply is not licensed, in most case."

True. But they can get a license in the new state if they so choose. Unlike a same-sex marriage license.

26 posted on 06/01/2006 9:55:54 AM PDT by robertpaulsen
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To: Sunsong; AFA-Michigan; AggieCPA; Agitate; AliVeritas; AllTheRage; An American In Dairyland; ...
Homosexual Agenda Ping!

If you oppose the homosexualization of society
-add yourself to the ping list!

To be included in or removed from the
HOMOSEXUAL AGENDA PING LIST,
please FReepMail either DBeers or DirtyHarryY2k.

Free Republic homosexual agenda keyword search
[ Add keyword = homosexualagenda to flag FR articles to this ping list ]

Who is the supposed 'conservative" Law Professor Dale Carpenter, author of this "piece" -who does he advocate for -- and why, if supposedly conservative does he oppose the President and Republican leadership to advocate for the homosexualization of society position?

A reference from a known leftist homosexualization of society advocacy group, the HRC (Human Rights Campaign) website seems to should shed some light on the questions:

Testimony of Witnesses before the U.S. Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Property Rights

Hearing on the Proposed Federal Defense of Marriage Act – Sept. 4, 2003

SMALL EXCERPT:

The witnesses for the Democrats were Keith Bradkowski, who lost his partner of 11 years, Jeff Collman, in the Sept. 11, 2002, attacks, and Dale Carpenter, a conservative, openly gay professor at the University of Minnesota Law School.

If nothing else, clearly for myself, I have discovered the source of much of the leftist talking points I have seen recently touting DOMA, opposing the FMA, and seeking to protect States' Rights ROTFLMAO -Dale Carpenter...

27 posted on 06/01/2006 9:57:18 AM PDT by DBeers (†)
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To: robertpaulsen
But they can get a license in the new state if they so choose

Only if they meet the qualification requirements of the new State.

28 posted on 06/01/2006 9:57:40 AM PDT by Lekker 1 (("Stocks have reached what looks like a permanently high plateau" - I. Fisher, Yale Econ Prof, 1929))
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To: trebb

####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.####

No one can truly know if this is true or not. In all likelihood, gay "marriage" advocates will wait until they've legalized such "marriages" in three or four states (via state judicial fiat), and there's a Democrat majority on Congress (to kill any marriage amendment in committee) before going full speed ahead for a gay "marriage" judicial fiat. But it will come, sooner or later.

####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.####

These guys must have been living on Jupiter when those court decisions on interracial marriage, sodomy, parental consent for abortions, and many other issues were handed down. The Supreme Court has already breached federalism in the three areas most relevant to gay "marriage". They held that marriage itself is a federal constitutional issue in Loving, they rules that homosexuals are a "protected class" in Romer, and they ruled that homosexual sex is a protected activity in Lawrence.

####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.####

This shows that these Cato dudes don't have the slightest understanding of the gay agenda, which is all about group privelege and not individual rights. Individual rights get trampled under the gay agenda. Yeah, a constitutional amendment prohibiting abortion in 1972 would've cut short the national debate, too. But the national debate didn't last long, as in 1973 the court shut it down by making abortion-on-demand the law of the land. Do these guys really think gay activists and their allies want these issues debated and decided at the state level? Even as we speak, they're working toward a federal judicial fiat on this issue.

####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.####

And judicial fiats don't forclose state legislatures from exercising their will? So let's see if I get this right. Gay "marriage" has been rejected throughout American history. Not one single state has ever approved it democratically. Yet, it's opponents of gay "marriage" who are being radical and departing from our traditions by seeking passage of a legitimate constitutional amendment to block an impending unconstitutional judicial fiat?

No wonder liberals always win. They're playing by a completely different set of rules from our side, and they set the terms of debate. Only in the topsy-turvy world of liberalism could opponents of gay "marriage", operating within the confines of the Constitution, and winning popular referenda, be considered radicals, while those trying to use judicial fiats to impose their agenda are "moderates".

####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.####

EXACTLY!!!!!



29 posted on 06/01/2006 10:00:29 AM PDT by puroresu (Conservatism is an observation; Liberalism is an ideology)
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To: Sunsong

In 2004, I was so against gay marriage and I still am. However, I do have a little different perspective on this now that I saw Mary Chaney on Letterman. The thing she said was something to the effect that if her girlfriend of 13 years (surprised me) died tomorrow she would not get any social security (at 67 for her and of course herself)and that she does not share any tax breaks. If these are the real issues why not just pass something that gives them these two items. I think that would solve everything. First of all, Social Security is being given to illegal immagrants (possibly) and I truly would rather give it to Americans. Second, tax break can be done...why not? I would not have a problem with this if it did indeed save the sanctity of marriage. Does anyone at all agree with me or am I way crazy...I have been told that before so if I get called it again...no problem. I am just trying to be rational about something that is not necessarily something I agree with. I am trying to be adult about it...scary concept. LOL.


30 posted on 06/01/2006 10:01:04 AM PDT by napscoordinator
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To: Sunsong

I would agree with your position IF we could rely upon Federal Judges to honor and uphold the US Constitution
--its' clear language used,and intent of the men who
drafted and ratified that document. If Federal Judges could be Trusted to recognize that the Constitution is a written
instrument whose meaning doe snot alter. We might have a
starting point. They have not demonstrated the oligarchy of
despots warrants such trust. IF we could rely upon the US
Congress to provide the Constitutional check/ballance to the
out of control Judiciary We might have a starting point.
They have NOT ,in my lifetime stood up to the Judiciary,that I am aware of. IF ANY could demonstrate how
celebrating or recognition of aberrant sexual behavior and
a self and socially destructive lifestyle choice could possibly benefit the greater good -in short if any could prove scientifically that homosexuals are "born that way"
that somehow the Scripture is Wrong-and God really meant
to inspire the author of Genesis to declare God Created them male and female and homosexual.Which I see NO credible evidence for believing true. We might have a starting point.But because it has been the Federal Judiciary that has thus far denied the express will of the people too often and as it has been the corrupt Courts that have mandated special class protection and change where NONE is
warrented. As there is NO credible reason WHY Society ought recognize as equal -what is so easily displayed as NOT equal-there simply is NO room for discussion. The Courts and the lack of will on the part of Congress to insist on
the Rule of Law be applied --NOT the rule of the oligarchy divorced from God--and LAW these have made a Federal Marriage Amendment necessary- though I would prefer a
Constitutional amendment that would address the problem with our ACLU Led Judges.Even though I believe Congress did
address the "marriage issue" in 1861 pursuant to Utah being admitted.And the Courts in a series of legal decisions 1878
Reynolds- 1890 Church of Jesus Christ of Latter Day Saints
v. the United States -time and again upheld the Congressional act of 1861-and the Christian Bible based
definition of marriage.


31 posted on 06/01/2006 10:07:28 AM PDT by StonyBurk
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To: Lekker 1
"Only if they meet the qualification requirements of the new State."

Well, yes. Of course.

But my point was that the new state allows for professional licensing and may not allow for same-sex marriage licensing.

So it not that they merely wouldn't be licensed in the new state -- it's that they couldn't be licensed in the new state. And that may be grounds for a federal lawsuit based on the Full Faith and Credit Clause.

32 posted on 06/01/2006 10:08:16 AM PDT by robertpaulsen
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To: napscoordinator
If you allow tax breaks for sexual preferences, many people will actually fake their preferences.

Homosexuality is about sex, not marriage.

If Mary Cheney wants benefits from her fellow citizens to subsidize her sexual proclivities, she is abusing them.

But one thing you pointed out is painfully clear, most of this is about money,,as usual.

33 posted on 06/01/2006 10:08:59 AM PDT by Protagoras ("A real decision is measured by the fact that you have taken a new action"... Tony Robbins)
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To: napscoordinator
"If these are the real issues why not just pass something that gives them these two items."

Because it's NOT the real issue. The real issue is public recognition, then tolerance, then finally acceptance of homosexuality as an equally alternative lifestyle.

Same-sex marriage is one part of that process. Non-discrimination against homosexuals is another. Hate speech protection is another. Educating our children on homosexuality is another. Homosexual adoptions are another. Research into the genetic background of homosexuality is another.

Each are pieces of the whole.

34 posted on 06/01/2006 10:19:22 AM PDT by robertpaulsen
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To: Sunsong

[...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]



This is absolutely correct.

The constitution is supposed to define what the government does and does not do. It is not supposed to limit the behavior of citizens. Like abortion policy, state law is the only proper place for this.


35 posted on 06/01/2006 10:20:29 AM PDT by spinestein (The Democratic Party is the reason I vote for Republicans.)
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To: puroresu
the national debate didn't last long, as in 1973 the court shut it down

Yeah, that's why nobody for the past thirty-three years has ever raised the issue in political debate.

36 posted on 06/01/2006 10:22:03 AM PDT by steve-b (hardcore 'social' conservatives are to the Rs what the hardcore moonbat eco-nuts are to to the Ds)
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To: Protagoras

Obviously, the correct solution is to remove the subsidies in all cases (and to cut spending and taxes across the board by the corresponding amount).


37 posted on 06/01/2006 10:24:14 AM PDT by steve-b (hardcore 'social' conservatives are to the Rs what the hardcore moonbat eco-nuts are to to the Ds)
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To: Sunsong
the facile judicial-activism argument

It is facile to label it facile.

Who would have predicted that Roe v. Wade really meant ... any abortion, any time?

38 posted on 06/01/2006 10:27:25 AM PDT by Nonstatist
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To: Sunsong
"This paper is written for conservatives (except for those who are social conservatives)"
39 posted on 06/01/2006 10:27:34 AM PDT by MEGoody (Ye shall know the truth, and the truth shall make you free.)
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To: napscoordinator
The thing she said was something to the effect that if her girlfriend of 13 years (surprised me) died tomorrow she would not get any social security (at 67 for her and of course herself)and that she does not share any tax breaks.

So Mary Cheney doesn't pay social security in the job she holds? As to tax breaks, gee, that's too bad. I still don't support legalizing gay marriage.

If these are the real issues why not just pass something that gives them these two items.

I wouldn't support that. Why give them all the benefits of marriage? That's the same as saying "I'm against gay marriage. nug, nug, wink, wink."

First of all, Social Security is being given to illegal immagrants (possibly) and I truly would rather give it to Americans.

Instead of granting social security benefits to another new class of people, we should work to take it away from illegals.

40 posted on 06/01/2006 10:34:01 AM PDT by MEGoody (Ye shall know the truth, and the truth shall make you free.)
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