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WSJ.com ^ | Friday, September 5, 2003 4:06 p.m. EDT | JAMES TARANTO

[swilhelm73]

In today's Washington Post, former senator Alan Simpson, a Wyoming Republican with libertarian social views, weighs in on the question of same-sex marriage. Specifically, Simpson argues against a proposed constitutional amendment that would define marriage as a union between a man and a woman only. Simpson disclaims any position on whether same-sex marriage should be legally recognized, but he argues against the amendment on the basis of states' rights:

In our system of government, laws affecting family life are under the jurisdiction of the states, not the federal government. This is as it should be. . . .

That people of goodwill would disagree was something our Founders fully understood when they created our federal system. They saw that contentious social issues would best be handled in the legislatures of the states, where debates could be held closest to home. That's why we should let the states decide how best to define and recognize any legally sanctioned unions--marriage or otherwise. . . .

Conservatives argue vehemently about federal usurpation of other issues best left to the states, such as abortion or gun control. Why would they elevate this one to the federal level?

This is a good argument against the proposed amendment, which would prohibit states as well as the federal government from recognizing same-sex marriages. But if states' rights are really Simpson's concern, it's somewhat disingenuous of him not to address the way in which the other side hopes to circumvent them.

Currently a case is before the Massachusetts Supreme Judicial Court in which the plaintiffs ask the court to declare it unconstitutional to limit marriage to heterosexual unions. If the court rules in their favor, as most observers expect it to do, the ruling would apply only to Massachusetts--for the moment, at least. A gay couple from, say, Alabama could go to Boston and get hitched, but under the Alabama Marriage Protection Act--one of 37 such state laws--their Boston marriage would have no force back in the Yellowhammer State.

There is a strong argument, though, that the Alabama Marriage Protection Act and laws like it are unconstitutional. Article IV, Section 1 of the Constitution provides: "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." A federal court could very well accept our Alabama couple's argument that once Massachusetts has ratified their marriage, the other 49 states are bound to recognize it. In addition, the Supreme Court could rule, based on its precedent in Lawrence v. Texas (the case that overturned state sodomy laws) that laws against same-sex marriage violate the right to privacy or equal protection.

So why not a compromise amendment to preserve the principles of democratic rule and states' rights? It would read something like this:

Nothing in this Constitution shall be construed to require any state or the federal government to recognize any marriage except between a man and a woman.

This would not prohibit same-sex marriage; states would remain free to recognize it, as would the federal government, if Congress passed legislation to do so. It would, however, prevent same-sex marriage from being imposed on the entire country by judicial fiat.

[William McKinley]

In our system of government, laws affecting family life are under the jurisdiction of the states, not the federal government.

This is not an argument against an amendment to the Constitution. It is an argument (and a great one which I like using) against many federal laws proposed, but by definition a Constitutional amendment is a change to our system of government. ANY amendment is a change to our system of government. And the founders anticipated changes to our system of government, which is why they included the process for amending the Constitution in the Constitution.

[swilhelm73]

It should be pointed out, to follow up on what you have to say, that if gay marriage proponents followed the intended and Constitutional methods proscribed to legalize gay marriage, there would not be a threat of a Constitutional Amendment to oppose them.

But they cannot convince more then a small minority to support their goals, and are opposed by a large enough majority to make a Constitutional amendment agains tthem a realistic possibility.

The leftist trick of legislating from the bench where they can't legislate from the legislature may have hit a serious bump, at least on this issue.

[weegee]

Washington Post thread on the Alan Simpson authored editorial:

Missing the Point on Gays