Pro: Amendment needed to prevent courts from nullifying will of 45 states

The Salt Lake Tribune ^ | June 22, 2006 | Andrea Lafferty

[DBeers]

Pro: Amendment needed to prevent courts from nullifying will of 45 states

The writer is addressing the question, "Should Congress continue to pursue a constitutional amendment defining marriage as solely between a man and a woman?"

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WASHINGTON - The United States needs to nail down the definition of marriage and its singular role in our culture. The most recent attempt, the Marriage Protection Amendment, was poorly worded and it went down to defeat in the Senate, but a new amendment should already be on the drawing board.

A constitutional amendment is required because one state legislator or a few judges can impose the recognition of homosexual marriage on all of America, even though 45 of the 50 states have taken some form of legislative stand against it.

In Massachusetts, one legislator, then-Senate President Thomas Birmingham, gaveled down a constitutional convention in 2002 before a vote could be taken on a marriage referendum initiated by 130,000 petition signers - twice the amount required by law.

Seizing the moment, the Massachusetts Supreme Judicial Court issued a decision legalizing homosexual marriage.

The Full Faith and Credit clause of the U.S. Constitution requires all states to recognize certain actions of each individual state, and marriage is one of them. That amounts to one state forcing America to recognize homosexual marriage even in each of the 45 states that have condemned it.

The recent Marriage Protection Amendment that failed in the Senate gave marriage definition and protection in its first sentence but took it away in the second with language that constitutionalizes "civil unions," "domestic partnerships" and whatever new synonym is created as a facsimile of marriage.

The Traditional Values Coalition joined with Michael Farris, Patrick Henry College president and constitutional law scholar, and other conservative groups like Concerned Women for America in opposing this version of the amendment because of the boost it gives to civil unions by enshrining them in the U.S. Constitution.

A number of our colleagues supported the amendment and argued that "giving in" on civil unions was the only way to gather enough votes for passage. The Senate vote on the amendment proved them wrong.

We need to initiate this new amendment on the state level and align it with the reality of the grass-roots activists on the frontlines of this national battle defending the sanctity of marriage.

Civil unions are homosexual marriages. Michael Farris drives home this point by quoting the statutory language that codified and implemented civil unions in Vermont and domestic partnerships in California. They say in slightly different terms that civil unions/domestic partnerships grant all of the same rights and privileges as those accorded to married spouses.

It is hoped the House will survey the shortcomings of the Senate's defeated version and adopt an amendment that provides unqualified support and protection to marriage.

This may be a simple, one-sentence amendment. But an amendment that starts on the state level and rolls into Washington like thunder will help energize the grass roots and also ensure that no compromises of principle go unnoticed.

Formulations that attempt to finesse or horse-trade for marriage protection will continue to fail. The Marriage Protection Act proponents have mislead the conservative grass roots across America into believing that civil unions were somehow different than marriage while simultaneously trying to win the consent of liberals who know that civil unions are different from marriage in name only. They failed on both scores.

A forthright debate on marriage and a simple and clear amendment will crystallize the votes needed in 38 states to bring forth this amendment from the grass roots, where there is overwhelming support.

Marriage can occur only between one man and one woman, and everything else is a cheap imitation, unworthy of this great country and her free and intelligent people.

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[AntiGovernment]

What's wrong with an amendment saying that the states, and only the states, have the authority to define marriage and that no state shall recognize something that goes against its public policy (i.e. gay marriage). That way, you can prevent a judicial decision and still preserve state's rights.

[DBeers]

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Formulations that attempt to finesse or horse-trade for marriage protection will continue to fail. The Marriage Protection Act proponents have mislead the conservative grass roots across America into believing that civil unions were somehow different than marriage while simultaneously trying to win the consent of liberals who know that civil unions are different from marriage in name only. They failed on both scores.

I agree, truth can not be compromised partially -it either is observed and recognized completely or it is sacrified completely...

[Ouderkirk]

The last time the US Constitution was turned into a programmatic document was prohibition, and we all know what a gleaming success that was.

It's better to not amend the constitution and reclassify homosexuality as a mental disorder as it should rightly be addressed.

[GrandEagle]

I don't really think we need any amendment. Congress, if they were serious, can simply pass a law removing the federal courts jurisdiction from issues pertaining to what defines a marriage.

That would be the end of it.

[DBeers]

FYI

Some homosexual marriage legal cases and where they stand:

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• Washington: The state Supreme Court heard arguments in March 2005 in a case in which 19 couples seek to overturn the state's Defense of Marriage Act. It's unclear when the court might rule.

• New Jersey: The state Supreme Court heard arguments in a case Feb. 15; it's unclear when the court might rule.

• New York: The state Court of Appeals, New York's top state court, heard arguments in a case May 31; it's unclear when the court might rule.

• California: A state court last year ruled that barring same-sex marriage is against the state Constitution. An appeals court is to hear the case on July 10. The three-judge panel will have 90 days to rule. Any decision is expected to be appealed to the state Supreme Court.

• Maryland: A judge on January 20 struck down a 1973 state ban on same-sex marriages. The state has appealed the ruling.

• Connecticut: A state judge heard arguments in a gay marriage case on March 20. An appeal is expected whatever the outcome.

• Iowa: A trial in a gay marriage lawsuit is scheduled before a state judge for Oct. 23.

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[AntiGovernment]

They have all one thing in common: they're in state courts. The people of those states can solve their "problems" by passing a constitutional amendment, and that would be the end of the matter.

[MACVSOG68]

Yes, let's get right back into the marriage amendment. So little time...so many amendments to pass. We also have a flag amendment too. If we can get Congress concentrating on these two issues, the Republicans should sweep the congressionals in November.

On the other hand, most voters don't really care much about either issue as a priority for Congress. Most prefer that Congress concentrate on getting an immigration bill, funding the war on terror, supporting the Iraq effort, balancing the budget, passing the 13 annual appropriations bills, addressing the energy problems, fixing social security, etc. But what do the voters know about what's important?

The only way this is going to have any traction is if articles like this completely distort and mischaracterize the issue, as this one has done.

[Leatherneck_MT]

What's wrong with an amendment that says.

Marriage is the Union between One Man and One Woman.

It's simple, it's factual and it can be interpreted no other way.

But then i'm not a shister lawyer so who knows.

[MineralMan]

Con: The Constitution is, and should remain, a document that restricts what the government may do, not the citizens. It is not a document of laws; it is a document of establishment. Let the states make laws.

[taxcontrol]

To be honest, I would prefer your recommendation to a yet further expansion of Federal power to define marriage.

[Sonny M]

It's better to not amend the constitution and reclassify homosexuality as a mental disorder as it should rightly be addressed.

Good luck.

I think its a mental disorder, but I seem to be part of the extremely small minority that thinks that, most folks (even those opposed to this abomination) still thinks its biological.

Despite the fact that no scientific or medical evidence indicates so.

Never the less, I would rather see an amendment that allowed the states to determine, free from federal intrusion, how they define and recognise marriage.

A little more federalism is always a good thing.

[Lucky Dog]

US Constitution

Article IV

Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. [emphasis added]

Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

Article III

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish…

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority…

… In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. [emphasis added]

The question of whether or not a Constitutional amendment is required to protect heterosexual marriage is not a clear issue. Article IV, Section 1 of the Constitution gives Congress the authority to determine the the effect thereof referring to the requirements of one state’s recognition of the public acts of another state. The Defense of Marriage Act (DOMA) passed by Congress seems to establish only the requirements on the Federal government and its agencies, leaving the impact on states unresolved.

Additionally, marriage is a privilege as evidenced by the requirement in every state for couples to acquire a license (a public act) before state recognition of the institution. Therefore, Article IV, Section 2 would seem to be the governing portion of the Constitution. As such, it would require states to recognize gay marriages performed in other states.

Article III, Section 2 gives Congress the authority to remove certain issues from the jurisdiction of the courts. However, it is established law that Congress cannot remove items of original jurisdiction from the purview of the Supreme Court. Therefore, the question would become whether or not a case involving Article IV, Section 1 would be an item of original jurisdiction. I’m betting that the Supreme Court would rule that such was, in fact, within its original jurisdiction.

If the Supreme Court were to rule that the issue of homosexual marriage falls under the full faith and credit clause, then no state could refuse to recognize the “public acts” of another state concerning homosexual marriage. Consequently, the only sure way to prevent the issue from being decided by unelected judges is a Constitutional amendment.

[GrandEagle]

items of original jurisdiction
Your point is well taken, however, the items that the SCOTUS has original jurisdiction are specifically listed, are they not? Then the clause states " In all the other cases before mentioned ..."

Cordially,
GE

[MACVSOG68]

Con: The Constitution is, and should remain, a document that restricts what the government may do, not the citizens. It is not a document of laws; it is a document of establishment. Let the states make laws.

Well said. The Constitution is not a play-thing for election year posturing.

[MineralMan]

"Well said. The Constitution is not a play-thing for election year posturing"

Well, for my efforts, I'm sure I'll be called pro-gay. It has happened before. Oh, well.

[DBeers]

Well, for my efforts, I'm sure I'll be called pro-gay. It has happened before. Oh, well.

LOL!

NO, I doubt it -not in this case. You simply advocate for no Amendment -a legitimate position not premised illegitimately...

[Lucky Dog]

Your point is well taken, however, the items that the SCOTUS has original jurisdiction are specifically listed, are they not? Then the clause states " In all the other cases before mentioned ..."

Article III

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish…

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, [emphasis added] and treaties made, or which shall be made, under their authority…

Sure looks like a case arising …in law and equity, arising under this Constitution… would qualify as original jurisdiction since such is specifically mentioned.

How would you see it otherwise?

[MACVSOG68]

Well, for my efforts, I'm sure I'll be called pro-gay. It has happened before. Oh, well.

I know the feeling well! Depending on which amendment, I'm either a leftist pro-homosexual agenda troll, or an anti-conservative Libertarian. Many with an appreciation for the Constitution carry such scars.

[texgal]

If the federal government weighs in on the marriage debate, they would not have the abstention doctrine to hide behind on the unconstitutionality of issues like no-fault divorce.