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.
Maybe better put "This paper is written for those who may feel they are conservative e.g. RINOs"
---some links to what I have found to be a good method by which to measure and appraise just where you morally "fit" politically whether you may specifically realize it or not...
The Moral Matrix - Political Systems
The Moral Matrix - Recent US Presidents
Right. And that's going to going over with the gay "rights" advocates. They'll draw analogies to "slave states vs. free states", because, after all, it's a "civil rights" issue.
So your answer doesn't cut it.
At this point, a Constitutional Amendment does not go far enough. We need a UN resolution banning gay marriage globally.
" suspect that it can also prevent such "couples" from using the "full faith and credit" clause of the Constitution in *forcing* a state to recognize such a "marriage" performed in another state (e.g.,Massachusetts)."
Correct. States could still vote to make it legal for homosexuals to marry, the amendment would prevent the courts and legislatures from imposing it on the voters.
LOL -first things first...
The UN passes tons of pointless, unenforceable resolutions. What's another to add to the pile to ignore?
How about the as yet unheard of "facile" argument from this homosexual legal scholar or any other regarding the possibility of ANY legislative process to legalize "homosexual marriage" being successful? The author argues in defense of the impossible (possible legislatively legalized "homosexual marriage) while ignoring the reality of the possible and the realized (judical activism)...
####Yeah, that's why nobody for the past thirty-three years has ever raised the issue in political debate.####
They may have raised it in debate, but a judicial fiat makes the debate mostly irrelevant.
And what part of, no state can force, through judicial fiat, homosexual marriage on it's citizens, is not "define what the government does and does not do. "
Perhaps only obvious to you and I. :^}
The state has a legitimate and healthy interest in supporting traditional families. This is the foundation shown time and again that results in citizens that are able to best function and contribute in a positive way to society.
Thanks for the post. I agree completely with the arguments presented, as I have repeatedly stated on a number of threads. Conservatives shooting down federalism. Wow.
Which is to pretend that traditional families need the support of government.
I disagree on both counts. It is neither healthy nor legitimate.
Families are good but not in need of government force.
It's called DOMA and was signed into law in 1996 by Clinton. It has passed every legal challenge to it to date.
The essay agrees with you. Since there is effectively no danger to traditional marriage, the author asks why an amendment, which is what I want to know.
Leaving out the biblical references, the courts have all agreed with that. It makes no more sense than the ill-fated Equal Rights Amendment for women.
It happens all the time, and the state does not have to recognize the marriage as a result of the Defense of Marriage Act.
Sorry, but this is one of those issues where it's all going to be one way or another. The huge majority of states would never approve gay "marriage", but eventually the gay lobby will manage to establish it in a few states. Liberal state supreme courts will impose it, as in Massachusetts, or a goofball state governor like the one in Illinois will simply start issuing marriage licenses to gays without authorization, and his goofball attorney general will back him up.
Once that happens in a few states, including possibly a big state like California or New York, that's when the demand will start to rise to make gay "marriage" the "law of the land". The morning shows and women's magazines will be filled with sob stories about loving gay "couples" who are trapped in their home state. We'll hear about John, who received a lucrative job offer in Kansas, but couldn't move there to accept it because his "marriage" to Jim would become void. We'll hear about Sue, who wants to attend a college in Minnesota where there's an excellent sociology program, but she can't move there with her "wife" Janet without their "marriage" becoming void.
This will be called "The New Apartheid". We'll hear about all the bureaucratic difficulties created by this. Federal agencies have to keep two separate sets of records, one for "gay" states, one for non-"gay" states, at a cost of millions.
Then we'll have liberal cities and counties within conservative states offering "sanctuary" to gay "couples" by promising to recognize their "marriage", in violation of state law (just as some are now doing by offering sanctuary to illegal aliens).
A system like that simply won't survive. There are really only two choices. If we don't amend the Constitution to limit marriage to one man and one woman, the Supreme Court will impose nationwide gay "marriage" on us, using the 14th Amendment, followed by additional court orders for nationwide gay adoption, gay school curricula, gay affirmative action, and so on.
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