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The Federal Marriage Ammendment: Unnecessary, Anti-Federalist, and Anti-Democratic
Cato Institute ^ | 01 June 2006 | Dale Carpenter

Posted on 06/04/2006 1:41:05 PM PDT by Lorianne

PDF document, can't cut and paste


TOPICS: Constitution/Conservatism
KEYWORDS: cato; federalism; fma; homosexualagenda; libertarians; nannystate; samesexmarriage; statism
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1 posted on 06/04/2006 1:41:08 PM PDT by Lorianne
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To: Lorianne; 91B; HiJinx; Spiff; MJY1288; xzins; Calpernia; clintonh8r; TEXOKIE; windchime; ...

The Executive Summary just to wet everyones appetite for more.

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, without being cut
off by a single national policy imposed from Washington
and enshrined in the Constitution.

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.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, without being cut
off by a single national policy imposed from Washington
and enshrined in the Constitution.

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.


2 posted on 06/04/2006 1:45:50 PM PDT by SandRat (Duty, Honor, Country. What else needs to be said?)
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To: SandRat
The Federal Marriage Ammendment: Unnecessary, Anti-Federalist, and Anti-Democratic

And the only way to stop the degenerating of marriage to fit some homosexual's view of the world.

3 posted on 06/04/2006 1:52:42 PM PDT by bnelson44 (Proud parent of a tanker! (Charlie Mike, son))
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To: Lorianne

Why THIS amendment? Why NOW?


4 posted on 06/04/2006 1:54:59 PM PDT by zeaal (SPREAD TRUTH!)
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To: SandRat
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.

Right on. We should leave radical, unenessary, unprecedented, and overly broad departures from the nation's traditions and history to our Judiciary to do.

5 posted on 06/04/2006 1:55:35 PM PDT by NeoCaveman (Can I only pay 3 out of five years taxes and profit from identity theft too?)
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To: Lorianne

I suspect it has more to do with trying to get conservatives back on board with the GOP. We already voted against same sex marriage and won in my state.


6 posted on 06/04/2006 1:56:12 PM PDT by cripplecreek (Never a minigun handy when you need one.)
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To: zeaal

Because the inept, feces-for-brains GOP has to get conservatives to the polls.


7 posted on 06/04/2006 1:56:49 PM PDT by Extremely Extreme Extremist (Conservatism is moderate, it is the center, it is the middle of the road)
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To: zeaal
Why THIS amendment? Why NOW?

Because 'conservatives' (i.e. Republicans) don't respect the ideals of federalism anymore than liberals do.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State--Federalist 45

8 posted on 06/04/2006 1:57:59 PM PDT by billbears (Those who do not remember the past are condemned to repeat it. --Santayana)
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To: Lorianne
One certainly can argue against the proposed amendment on the grounds of Federalism, but given that the State courts have been unilaterally superseding the will of the people in State after state, it's pretty hard to argue that the Amendment is in some way undemocratic.

I don't know if, on balance, the Amendment is a good or bad idea -- but, it does seem that the only way the will of the people will become the prevailing law of the land is for a constitutional amendment of this type to go forward. (though, of course, it has little chance of getting through the Senate, let alone to the States at this juncture)

Without it, the future is pretty clear: The Defense of Marriage Act will, sooner or later, be declared unconstitutional. Then, before the Constitution could be amended after that point in time, the courts will demand that all States accept gay marriage. After that point, the general argument against the amendment will be that too many gay couples have relied on court rulings and that it would be fundamentally unfair, and perhaps in violation of other elements of the Constitution, to reverse course.

An amendment may not be a great idea from many perspectives, but it does seem the only effective way that the "people" can speak on the issue -- and, it appears that most who argue against the amendment, on the myriad "grounds" they propose, are really arguing against democracy. They don't want the people to speak because they might not like the choice they make -- the courts are much more reliable, what they will do is perfectly predictable.
9 posted on 06/04/2006 2:00:21 PM PDT by vetsvette (Bring Him Back)
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To: cripplecreek

No, it was on the calendar to talk about it now in the Senate.


10 posted on 06/04/2006 2:02:28 PM PDT by bnelson44 (Proud parent of a tanker! (Charlie Mike, son))
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To: bnelson44

Well I'm not going to be distracted or worry about it.


11 posted on 06/04/2006 2:03:51 PM PDT by cripplecreek (Never a minigun handy when you need one.)
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To: SandRat

There was no basis in the constitution to legalize abortion either.


12 posted on 06/04/2006 2:08:28 PM PDT by John Lenin
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To: SandRat
A person who opposes same-sex marriage on policy grounds

I oppose same sex marriage on personal, moral and religious grounds. I oppose it on the grounds that Homosexuals (and "friends") have high-jacked our language, culture, laws and foundations to force their agenda on the rest of the country. Save the policy lawyerese for someone who cares.

I am an Adult Male Survivor of Childhood Sexual Abuse. I see this legislation as a way to protect other boys from experiences such as mine. I also see it as the only way to protect the family unit in our society.

The Homosexualization of America is wrong in any form. In my short lifetime it is easy to see how far this country has gone astray in this area. Those who oppose so called gay marriage are labeled intolerant and wrong. This article is pernicious in its meaning. It says one thing in its legalese but its true intent is to promote so called gay marriage. (A nice definition of a lie. Say one thing while meaning another).

This article says "you can't oppose on policy grounds" argument. Hell if I can. The article implies an amendment is undemocratic. What is more democratic than the citizens of this country voting on an amendment?

13 posted on 06/04/2006 2:09:05 PM PDT by Rameumptom (Gen X = they killed 1 in 4 of us)
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To: Lorianne

It is not anti-federalist since 3/4 of the states must sign on, as well as 2/3 of Congress. There must be wide agreement throughout the states that this issue is important enough to warrant mention in the federal constittuion. And even then, the reason it is an issue must be remembered. THE STATE AND FEDERAL COURTS ARE IN FACT TAKING AWAY THE PEOPLE'S RIGHT TO DEMOCRATICALLY DECIDE THIS ISSUE!!!!!!!!! The amendment is to rein in the judges and keep them under their Constitutional restraints. It leaves the state legislatures free to choose gay marriage under a different name. That I think is a very bad idea, but the Amendment doesn't forbid it. (It should, but it doesn't.)


14 posted on 06/04/2006 2:17:22 PM PDT by The Ghost of FReepers Past (Woe unto them that call evil good, and good evil; that put darkness for light..... Isaiah 5:20)
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To: SandRat

There are precedents for the FEDs to get invovled.
The 1862 Morril Act outlawed Polygamy.
The FEDS also got involved overturning State laws that didn't allow inter-racial marriages in 1967 Loving V. Virginia.


15 posted on 06/04/2006 2:21:34 PM PDT by Rameumptom (Gen X = they killed 1 in 4 of us)
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To: The Ghost of FReepers Past

You have a good point, but I still think it sets a precedent for the Feds to get involved in too many more social issues.

It also has political ramifications for Republicans, which is outside the scope of this article, but still a consideration.


16 posted on 06/04/2006 2:24:01 PM PDT by Lorianne
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To: SandRat

FMA is such obvious pandering....leave it to the states.


17 posted on 06/04/2006 2:24:17 PM PDT by countreegurl
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To: SandRat
I Googled it and here is the text of the Amendment.

"Marriage in the United States shall consist only of the union of a man and a woman.

Neither this Constitution, nor the Constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

Surprise... Surprise... guess where I got the text from. "The Human Rights Campaign: Working for Lesbian, Gay, Bisexual and Transgender Equal Rights." (Not posting a link if you care to visit this site look it up yourself.)

Here is what they are doing according to their site.

"The Human Rights Campaign, along with tens of thousands of advocates, works around the clock to lobby members of Congress on critical legislation that would greatly affect the lives of gay, lesbian, bisexual and transgender Americans."

Under the Federal Marriage Amendment link they make an argument similar to the one in this article with other arguments.

18 posted on 06/04/2006 2:30:45 PM PDT by Rameumptom (Gen X = they killed 1 in 4 of us)
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To: Rameumptom
I stand four-square with you on your statement.

They recruit by any means available, to include coercion, gile, force, etc... and that they have no business around children in any form or fashion.
19 posted on 06/04/2006 2:32:28 PM PDT by SandRat (Duty, Honor, Country. What else needs to be said?)
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To: countreegurl
Please, you cannot be this obtuse.

The legitimate fear (based on the actions of the courts in the past) is that the issue will not be left to the states. However, this amendment would allow State A to have homosexual "marriage" just that it would not be recognized by the federal government nor would other states be forced to recognize it. This amendment would really leave the issue to the states. The courts would not be able to force another state or the Federal government to recognize a perverse definition of marriage by another state.

If you support homosexual "marriage", just say so, but don't lie about the amendment to hide your true feelings.

20 posted on 06/04/2006 2:32:34 PM PDT by dpa5923 (Small minds talk about people, normal minds talk about events, great minds talk about ideas.)
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