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.
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. The problem is not the judges, but the legislature. At one point, an overwhelming majority was in favor of an amendment which would cure the issue. From what I read, they seem to be falling by the wayside due to a lack of support from their constituents. 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. 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.
Surely, then you are against the Lawrence v Texas decision, which imposed a Federal order on the states, in a matter in which the state was doing something that had no adverse effect on other states.
Lawrence v Texas affirmed that a state cannot deny the same right to privacy the majority enjoys to a select group, even if the majority deplores what that group might be doing in the privacy of their own home. No I don't object to that. All consenting adults have a constitutional right to privacy in their own homes as long as they are not violating the rights of others.
Surely to be fully consistent, you will have to say that Virginia v Loving was also wrongly decided. ...
I absolutely support this decision. You may be confusing my support for the legitimate powers of the states within the framework of the 10th Amendment, with my support for the Bill of Rights and the 14th Amendment. I support both fully. A state has a legitimate goal of promoting procreation, thus substantiating a need to keep marriage between one man and one woman. It does not infringe on any rights of anyone. Each of the two cases you listed found for the plaintiffs because the states failed to articulate a compelling state interest in the discrimination.
So, lets say we wok up and realized that the 14th doesnt actually cover the situation of interracial marriage, that it was an intrusion on Federalism and not quite the 'equal protection' issue some think it is, and there was a constitutional amendment proposed forbidding state laws against inter-racial marriage .... would you be for it or against it?
Of course because it violates not only the right to due process, but a fundamental right to equal protection of the law. In this case since procreation is a legitimate state interest, simply refusing someone of different races to marry would not pass the same muster that refusing gays to marry has. You have created a straw man that is composed of different characteristics. For gays, a state can articulate a legitimate reason for banning marriage, for interracial marriage they cannot.
What an absurd comment.
Thanks, but you're more than keeping up.
Obviously w ehave seen several cases undrmining traditional concepts of marriage in states other than the one imposing gay marriage. Full faith and credit clauses comes into play, and hiding behind shallow 'federalism' arguments doesnt cut it.
What a state court does is none of yours or my concern. That is for the people of that state to work out. That is what federalism is all about. As for the FFC clause, the Defense of Marriage Act covers it quite well. No state has to recognize same sex marriages from any other state.
http://www.lifesite.net/ldn/2005/nov/05111810.html
"You don't define the ramifications."
And you say you oppose gay marriage? Are you joking? Why do you oppose it, if you need the ramifications spelled out? Do you really need it spelled out?
Okay: our society has a stake in protecting those institutions responsible for creating healthy, productive citizens.
Marriages between men and women provide the stable legal, social and moral basis on which to raise families and nurture children. No other arrangement has been shown to be better for raising children to be productive and successful members of society.
So. Society has a stake in promoting and supporting traditional marriage. Other arrangements do not merit the status we accord this institution. Because they don't and can't provide the same function. A society which ignores biologic and social reality, and claims or legislates that that other arrangements should be considered no differently than traditional marriage, is setting itself up for disaster.
Is that clear enough for you?
Who is having homosexual marriage forced on them?
Perhaps the solution is to get the government (both State and Federal) completely out of the business of recognizing marriage as a contract between two partners.
Whenever a baby is born, the State simply registers the mother and father and holds them equally accountable for that child's welfare.
I'm not necessarily advocating for this, but I wonder if it might be more beneficial to children than the present marriage mess.
I'm discussing my opposition to the FMA. What are you talking about?
Maybe what's going on in Canada will clue you in about the connections.
What's going on in Canada is their business, not yours unless you are Canadian. In any case, it's not mine.
And you say you oppose gay marriage? Are you joking? Why do you oppose it, if you need the ramifications spelled out? Do you really need it spelled out?
Well, you threw out so many complaints that I was unsure of which ones you thought would be resolved by usurping the legitimate prerogative of the states to make their own decisions, that I thought you might be able to very quickly spell it out. And yes, I oppose gay marriage in my state.
Marriages between men and women provide the stable legal, social and moral basis on which to raise families and nurture children. No other arrangement has been shown to be better for raising children to be productive and successful members of society.
Okay, you sold me. We need however to enlarge the amendment to prevent divorce, "living together" by heterosexuals, and above all, forbidding singles from adopting children. That would fit right in with your goals.
Society has a stake in promoting and supporting traditional marriage.
I agree completely. But that is a far cry from forbidding a state from chosing another path.
Other arrangements do not merit the status we accord this institution.
Again I agree. But exactly what other arrangements are you including and what would you do about these other arrangements?
A society which ignores biologic and social reality, and claims or legislates that that other arrangements should be considered no differently than traditional marriage, is setting itself up for disaster.
You may be right. But what is it that makes your judgment or mine so divine that it belongs in the supreme law of the land? The very essence of federalism is that states can make mistakes. As long as those mistakes do not infringe on the just rights of its citizens, they are free to make laws different from other states. Everyone does not share the same political, moral, economic, or even religious values you do. I do not want same sex marriage in my state. But I will defend the right of every other states' citizens to decide for themselves how they want to deal with gay and lesbian unions. It is none of your business and certainly is none of mine.
The "what if" you describe is already observed legally and happening right now. The "contract" is meaningless and swept away with a hand wave in no-fault divorce cases nationwide.
It is not a meaningless contract at issue here -it is the benefits and priveleges accorded to the married identified by such a contract as recognized by society that homosexuals want a piece of...
Pro choice is as morally principled a position in regards to homosexual marriage as it is in regards to abortion...
I agree both mother and father should be accountable for their offspring's welfare.
And I think that marriage is best apprehended as not merely a contractual obligation, but a sacrament. But there are legitimate reasons for government to support and accord special status/recognition to it.
It used to be that tolerance in the country meant toleration of things that would never be held as equivalent, equal or prefered practices. Tolerated meant "not criminalized."
Now we're expected to obliterate instititutions and social mores that have proven themselves over the course of long history--and for what?
Nothing as good. That's certain.
[...there are legitimate reasons for government to support and accord special status/recognition to it [marriage].]
I strongly agree with you on that statement, but if you were pressed to support your opinion for the record, could you list them and even briefly summarize those reasons?
"We need however to enlarge the amendment to prevent divorce, "living together" by heterosexuals, and above all, forbidding singles from adopting children. That would fit right in with your goals."
Good joke. No, how about this: We need to enlarge state's rights to allow bigamy, sex (and what the hell, marriage) between adults and children. Yeah! That's the ticket!
Look, you can pretend to make your state's rights appeal to "true conservatives" till you're blue in the face.
A constitutional amendment was designed to represent a an expression of the will of the people that goes beyond a state's right or a federal government's perogative. Your argument is phony. And you blow off the example of Canada, because the truth is, you'd like it to happen here.
Your protesting otherwise is about as believable as the gay rights advocate who wrote the article heading this thread peddling his tripe as a "conservative argument".
--it plays a vital role in handing on the work of one generation to the next
--it protects and nurtures children in a way that is best, compared with other arrangements
--it regulates sexual activity in a socially positive way
--it represents a highly successful form of social and economic cooperation
I agree with all that. And that doesn't even overtly touch on marriage as a religious sacrament ordained by our Creator, whereby each sex provides unique contributions/attributes and are completed by each other is a transcendent way.
Good post.
No joke intended. Those are the majority of problems leading to the the very goals you listed:
Marriages between men and women provide the stable legal, social and moral basis on which to raise families and nurture children. No other arrangement has been shown to be better for raising children to be productive and successful members of society.
So why is what I listed as additions to the amendment a joke? Aren't those other "living arrangements" not marriage? How do they contribute to what you want?
We need to enlarge state's rights to allow bigamy, sex (and what the hell, marriage) between adults and children.
Thanks, but I'll pass. Guess you really didn't want to address that after all.
Look, you can pretend to make your state's rights appeal to "true conservatives" till you're blue in the face.
That's three mistakes in one simple sentence. First I'm not pretending. I'm for real. Look for me on all of these FMA threads. Second there are no states' rights. States have powers. Persons have rights. Finally, most conservatives I've met have a deep appreciation for federalism and a constitutional republic. They don't resort to their own personal set of values and biases to impact the just powers of those states they do not reside in. Finally, I've run into quite a few interesting folks here, but not a lot of conservatives. Don't confuse either theocrats or dictators with the term conservative.
Your protesting otherwise is about as believable as the gay rights advocate who wrote the article heading this thread peddling his tripe as a "conservative argument".
As I recall, you posted to me complaining of my position. Wouldn't that make you the protester? As for "gay rights" they have exactly the same rights as you or I do. Kinda hurts now, don't it. Imagine, due process, right of association, privacy, equal protection under the law...who do they think they are...citizens?
http://www.bartleby.com/65/st/statesri.html
Now. Instead of your stupid avoiding, try answering the substance of my argument. I say a Constitutional Amendment, first and foremost, represents an expression of the will of the people that has to meet very high hurdles, including approval by three-fourths of...the States. The result is a Federal power, but the process is not of a Federal power usurping state's rights. Get the difference?
Sure you do. But you'll go off on some stupid tangent anyway. But that's okay. 'Cause you're one of the only 'real' conservatives on FR. Really you are. Really.
"As for "gay rights" they have exactly the same rights as you or I do. Kinda hurts now, don't it."
It does hurt...laughing. It seems gays have even more rights than the rest of us. They have the right to change the fundamental meaning of whole viable and socially constructive institutions to suit their whims.
And their transgender friends have even greater powers! They can transcend their genders! They can magically change from male to female and female to male, and the rest of us are obliged to recognoize this amazing ability.
Keep going. You're a regular Ronald Reagan.
I think it may be the most important distinction in the Constitution. Rights cannot be given by governments. Rights exist. They may not be recognized, as they weren't for Blacks and women for much of our history. But they still existed. Governments have no rights, only powers. Look at the distinction between the Ninth and Tenth amendments. Powers can be changed, removed, modified, etc.; rights cannot. They can only be either recognized as they are in the Bill of Rights and other amendments, or they can be held down, but never taken away. Just as Jefferson wrote in the Declaration of Independence, certain rights are inalienable and endowed by their Creator. So there is a great distinction. On this board, many here confuse this and believe that either the state or federal government can do to select groups of its citizens whatever pleases it, and can at will violate those rights. They confuse the powers of the state with the rights of persons. Rights always trump powers.
Instead of your stupid avoiding,
Another fine example of your debating skills....
The result is a Federal power, but the process is not of a Federal power usurping state's rights.
Again, states have no rights to usurp. But a constitutional amendment to curtail the powers of a state to determine that which it has always been recognized as having the power to do under the Tenth Amendment would be a usurpation of the powers of the states, yes. Most amendments have been designed to ensure that states and the federal government do not infringe on the rights of its citizens, the BOR, the 13th, 14th, 15th, 19th, 24th, 26th.
Clearly this amendment is designed to carve out a segment of citizens of this nation and tell a state it cannot treat that citizen as others. Now I don't have a problem with a state doing that, because it can justify it. I don't have a problem with a state that creates other than marriage relationships for legal purposes. But again, we are talking about the states. Most Americans are quite unaware of the implications of this because the zealots do not want them to know. They will not pay any attention to cries from the left, but hopefully there are enough conservatives who appreciate our constitutional republic to help educate them.
But you'll go off on some stupid tangent anyway.
Well, there's one thing we can agree on. I don't debate with the particular skills you exhibit.
"But a constitutional amendment to curtail the powers of a state to determine that which it has always been recognized as having the power to do under the Tenth Amendment would be a usurpation of the powers of the states, yes"
So a Constitional Amendment, if passed, would be...an unconstitional usurpation of state powers?
Your Constitutional analysis, I have to say, is really something. I'm sorry I implied you were stupid.
If you are referring to marriage, they certainly are not doing so in my state, which is the way I want it. 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. That would then permit them to impose whatever theocratic, moralistic laws on that particular group that they wished.
And their transgender friends have even greater powers! They can transcend their genders! They can magically change from male to female and female to male, and the rest of us are obliged to recognoize this amazing ability.
Well, apparently you do recognize it. But I don't spend that much time studying transgenders, so I'll have to take your word for it.
Keep going. You're a regular Ronald Reagan.
Believe me, my responses are to you, but not for you. Many people read these threads, and I thought I would just throw in a little intelligence to help balance it out. Take care.
Then we'll let the folks decide who took care of who, pal.
" I absolutely support this decision. You may be confusing my support for the legitimate powers of the states within the framework of the 10th Amendment, with my support for the Bill of Rights and the 14th Amendment. I support both fully."
So, since you support the concept of national Constitional regulation of how states regulate marriage, you cannot in principle object to FMA on Federalism or 'states rights' grounds, without being inconsistent.
Your answer to the later question ...
"So, lets say we wok up and realized that the 14th doesnt actually cover the situation of interracial marriage, that it was an intrusion on Federalism and not quite the 'equal protection' issue some think it is, and there was a constitutional amendment proposed forbidding state laws against inter-racial marriage .... would you be for it or against it?"
"Of course because it violates not only the right to due process, but a fundamental right to equal protection of the law. "
Of course, that answer is absurd. Right to due process? - it's a constitutional amendment trying to confirm equal protection in marriage. And all it does is confirm - in the Constitution - a ruling you say you approve!
Maybe you misread the question, that might explain it.
My point, in simple terms is this:
Federal Marriage Amendment regulates state marriage law at the Federal level, and Virginia v Loving's interpretation of the 14th also did the same (by forbidding laws against inter-racial marriage). As such, concurring with the latter, you cannot object to the former on Federalism grounds without opening up yourself to charges of inconsistency.
"In this case since procreation is a legitimate state interest" I agree, and so the Federal Govt can have child tax credits ... 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?
FMA should be debated on its substantive merits/demerits and not on rather weak and inconsistent claims about Federalism.
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