June 6, 2006

Free the Federal Marriage Amendment...

Hatched by Dafydd

...From its imperialist, anti-federalist foofoorah!

As longtime and attentive readers of this blog (or of Patterico's Pontifications and Captain's Quarters) know, I am a big fan of traditional marriage and no respecter of same-sex marriage. I see the latter as the thin edge of the wedge: the moment we, as a society, decide that marriage is not restricted to the special relationship between one man and one woman, there will be no philosophical or legal bar to judges declaring that every imaginable relationship is "special"... which, as "Dash" Parr of the Incredibles astutely notes, is the same as saying none is "special."

I believe traditional marriage is one of the cornerstones of Western Civilization and the greatest evolutionary leap of societal history. Societies that do not enshrine marriage as a relationship that is monogamous, mixed-sex, and non-consanguineous are doomed: they fail, sometimes with a whimper (a very appropriate phrase, considering what it means), betimes spectacularly.

But it is not the only cornerstone: another is democracy; another is liberty; and another, especially recently (the last couple of centuries), is federalism.

The problem with the Federal Marriage Amendment (FMA) is that it seeks not only to prevent judges from imposing same-sex marriage (or any other insane version of marriage) on other states, as the federal Defense of Marriage Act (DOMA) did, but also to prevent states from willfully choosing to enact same-sex marriage within their own borders.

But shouldn't they be able to? This is staggeringly anti-federalist; it amounts to marital imperialism... even though it imposes a regime that I, personally, support, I don't support its imposition by fiat -- even the fiat of a constitutional amendment that requires 67 senators, 290 representatives, and 38 state legislatures or referenda.

The 2004 version of the FMA (I'm not aware of a more current wording) reads:

  1. Marriage in the United States of America shall consist only of the union of a man and a woman.
  2. 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.

First, "marriage in the United States" seems, on its face, to mean any marriage in any state, even for purposes of the state. It appears that a same-sex marriage in Massachusetts could be challenged under this amendment even within Massachusetts. This is made very clear by the reference to "no the constitution of any State": presumably, even if the citizens of some state actually voted to amend their own state constitution to require "gender neutral" marriage, that amendment could be struck down by the FMA.

The real problem, however, is not that some state might freely decide to allow same-sex marriage; even if that were to happen, other states would not be required to recognize such marriages themselves... if DOMA were upheld. The problem is that the United States Constitution, in Article IV, section 1, the "Full Faith and Credit" clause, practically cries out for the Court to overturn DOMA:

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.

Anent marriage, I suspect (though I don't know the caselaw) that most judges would hold that the Full Faith and Credit clause means that a traditional marriage contracted in Arkansas would have to be accepted in Massachusetts, California, Vermont, and Hawaii. But what about a same-sex marriage contracted in Massachusetts? Is Arkansas required, under the Constitution, to honor it? Are the feds required?

The operative part of DOMA was clearly crafted with the Full Faith and Credit clause in mind:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

So far as I know, no case attacking DOMA has ever made it beyond the appellate level; the courts so far have upheld it, using the judicially created "public policy exception" to the Full Faith and Credit clause of the Constitution.

But this may not be strong enough, as more and more pro-gay-marriage federal judges jump into the fray. It would only take a single "Roe v. Wade" style decision to throw out the exception and mandate same-sex marriage for all.

That is the only danger we have to protect against... and we should so so without infringing the liberty of the residents of any state to define marriage as it exists within that state. Thus, I would much prefer to see the following Constitutional amendment in place of the FMA... call it the Defense of Marriage Amendment, or DMA:

  1. For federal purposes, marriage in the United States of America shall consist only of the union of a man and a woman.
  2. The Constitution of the United States of America shall not be construed to require any state, territory, or possession of the United States, or Indian tribe, to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as or like a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Clause 1 is intended to define marriage at the federal level (i.e., for tax purposes, for Social Security, for federal welfare programs, and so forth). Clause 2 is the meat: the intent is to prevent federal or state judges from holding that the U.S. Constitution requires same-sex marriage -- or even that alternative forms of marriage, contracted in state A, are required to be accepted by state B.

(The "as or like" phraseology is specifically intended to prevent A from enacting "civil unions" that are marriages in everything but name -- then forcing B to extend those benefits within its own border.)

Besides recognizing the liberty citizens of a state should have while still protecting traditional marriage, there is one other advantage to the DMA over the FMA: I believe the DMA could actually pass, whereas the FMA never will.

What would it mean to oppose the FMA? A conservative who believed deeply in federalism might oppose it as an act of conscience... much as Barry Goldwater opposed the 1964 Civil Rights Act, not because he embraced bigotry or segregation, but because he was unalterably opposed to the Act's extension to private racism by private individuals on their own private property.

But to oppose the DMA necessarily means that you want Massachusetts to be able to force other states to accept gay marriage. It means that if ten thousand same-sex couples in California jet to Boston to get "married," then return -- that notwithstanding the vote of the people of California, California should be forced to recognize them as "husband and husband," or as "wife and wife."

While the FMA is anti-states' right, opposing the DMA is anti-states' rights. For Sen. Lindsay Graham (R-SC, 92%) to vote against DMA would be the same as saying he wanted some Boston brahmin to have sovereignty over South Carolina.

The FMA will likely get about 57 votes in the Senate -- though supporter Sen. Wayne Allard (R-CO, 96%) is now only willing to predict it will get "a majority," which means more than 50. 58 or more would be a huge victory; anything fewer than 55 would be an embarassing failure. But switching to the DMA, in my opinion, would stand a much better chance of garnering the 67 needed to move it towards the states (a similar vote in the House would also be required).

Call me a pragmatist, but I would rather see a more liberty-minded amendment that can actually pass than a top-down federal power-grab that has no chance of success.

Hatched by Dafydd on this day, June 6, 2006, at the time of 3:49 PM

Trackback Pings

TrackBack URL for this hissing: http://biglizards.net/mt3.36/earendiltrack.cgi/816

Listed below are links to weblogs that reference Free the Federal Marriage Amendment...:

» Can't Say We Didn't Warn Ya from Big Lizards
Sooooooooo, the Senate finally voted today on the much-ballyhooed Federal Marriage Amendment. You remember the last time they voted (in 2004, I believe), the amendment -- which needs 67 votes to pass, and at least 60 even to advance to... [Read More]

Tracked on June 7, 2006 3:34 PM

Comments

The following hissed in response by: RBMN

I don't see the problem. To the extent that a subsequent amendment introduces a conflict with pre-existing portions of the US Constitution, like "full faith and credit" or some other section, it naturally modifies what was there before. That's the purpose of an amendment. In this case, the Constitution is modified only with respect to non-traditional government-recognized marriage. How could the amendment process work any other way? That's the way the US Constitution is designed to "live"--by using the amendment process. I'm pretty sure this will end up being purely academic anyway. The votes just aren’t there in Congress.

The above hissed in response by: RBMN [TypeKey Profile Page] at June 6, 2006 7:29 PM

The following hissed in response by: LiveFreeOrDie

You hit it spot on, Dafydd.

The only thing I would add is that THIS CRAP WILL NOT STOP until we repeal the 17th amendment.

The above hissed in response by: LiveFreeOrDie [TypeKey Profile Page] at June 6, 2006 8:10 PM

The following hissed in response by: Xrlq

The problem is that the United States Constitution, in Article IV, section 1, the "Full Faith and Credit" clause, practically cries out for the Court to overturn DOMA.

I disagree. The second sentence of the Full Faith and Credit "clause" - the part you didn't list in boldface - practically cries out for Congress to pass laws like DOMA in the first place. All this assumes, of course, that marriages are "public acts" within the meaning of the first sentence to begin with. If they're not, there is no full faith and credit issue at all.

The above hissed in response by: Xrlq [TypeKey Profile Page] at June 7, 2006 6:25 AM

The following hissed in response by: Big D

For me, I could care less who marries who. I find it hard to accept the concept that there are hundreds of thousands of people waiting to sign up for marriage. But I'll be damned if I'll let an unelected MA judge decide for the whole country.

Ditto this argument for abortion.

The above hissed in response by: Big D [TypeKey Profile Page] at June 8, 2006 9:51 AM

The following hissed in response by: Karen Lee

When the federal government got into the marriage business in the first place, THAT was where the slippery slope began.

When marriage was simply a religious covenant, this wasn't a problem, and if it still were, it still wouldn't be a problem - because my church happens to believe that God blesses the unions of loving, committed people regardless of their gender.

When we as a secular society with secular laws started making laws about and respecting marriage, that opened up the word "marriage" to a secular definition. Because people can get married by judges without ever mentioning God, there is simply no excuse for making God the reason to use our secular laws to continue denying the privileges and responsibilities of marriage to the families created by gay people.

These families exist regardless of any amendments There is no valid reason other than "they're gay and we don't like it" to deny them the same protections that hetero families get. For instance, a mother-in-law who hates her daughter's mate is armed with enormously more legal ammunition when it comes to visitation, inheritance, custody of children, medical decision making, etc if the mate in question is female. Why? Did the daughter give up part of her self-determination when she came out of the closet?

The above hissed in response by: Karen Lee [TypeKey Profile Page] at June 11, 2006 11:46 AM

The following hissed in response by: Dafydd ab Hugh

Karen Lee:

When marriage was simply a religious covenant, this wasn't a problem.

When was this? Karen Lee, there never was such a time.

Marriage has always been a secular (legal) institution as well as a religious one. Always. There was never some "Golden Age" when marriage was "simply a religious covenant."

You may believe that it should be nothing else; but you are not arguing from history. Marriage -- no matter what form it took -- has always been regulated by every society that ever existed on this planet.

In civilized societies that have actual laws, marriage has always been regulated by law; in primitive societies, it was regulated by social sanction, including banishment for offenders against tradition... where banishment was often a de facto death sentence.

We live in an incredibly enlightened society here in the West. We allow any two or three or fifteen people to live together, to consider themselves "married" if they want, and we even allow churches to "marry" them. But we, like every other society, have rules that specify who can and cannot be legally married.

Even Sweden and Canada have such rules: they may allow "gender-neutral" marriages, but they don't allow polygamy. And the Arab countries allow polygamy, but they certainly ban same-sex marriage. Every country has some form of legal marriage... and every such institution has rules bounding it, even if those rules differ from ours.

Such rules not only bound, they define society. Change the rules, and you change society -- often in unpredictable, destructive ways.

For instance, a mother-in-law who hates her daughter's mate is armed with enormously more legal ammunition when it comes to visitation, inheritance, custody of children, medical decision making, etc if the mate in question is female. Why? Did the daughter give up part of her self-determination when she came out of the closet?

Nope; she gave up part of her self-determination when she decided to live in a society, rather than move somewhere more congenial or live in splendid isolation.

For example, she gave up her self-determination to:

  • engage in public nudity;
  • shoot dogs;
  • discriminate on the basis of race;
  • drive through red lights;
  • burn tires in her backyard;
  • eat human flesh;
  • sell magical cures for cancer;
  • and even to professionally cut hair without a license.

She gives up many liberties in exchange for living in a society. We all do; it's a bargain, not a birthright.

Since Lawrence v. Texas, she has the recognized constitutional right to have sex with any person (or persons) she chooses, of whichever gender. I completely support that; it's a liberty interest.

But she does not have, and nobody in history has ever had the "right" to force society to accept as "marriage" any old relationship she chooses to enter.

Society cannot stop her from living with her lover, nor should we be able to do so; that is her liberty. But by the same token, she cannot demand that society celebrate it the way we celebrate traditional marriage.

Liberty to "do" does not mandate approval for having "done."

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at June 11, 2006 1:22 PM

The following hissed in response by: Karen Lee

But you reserve the right to force me to accept as marriage any old heterosexual relationship. So it all comes down, again, to "You're gay and I don't like it."

We're not looking for "approval". I don't have to approve of your marriage, why should you have to approve of mine? I'm looking for equal treatment of my family, which IS a family and deserves the same protections and legal standing as your family. The only reason we have different legal standing is that I'm gay and you're not.

Yes, society has decided that being naked in public is harmful, and outlawed it. You might agree with it, you might not, and you're certainly welcome to try to convince enough people to repeal that law. But being gay is not illegal like burning tires is. So no, I have not given up the liberty to decide for myself who I want to build a family with. Because my family is not illegal, it deserves the protections that other families get.

I give up certain liberties in exchange for being part of society. Equal treatment under the law is not one of them.

The above hissed in response by: Karen Lee [TypeKey Profile Page] at June 12, 2006 10:48 AM

The following hissed in response by: Karen Lee

Also, the time that marriage was a religious convenant only was the moment our nation was conceived. Nothing was said about it in the constitution. It was reserved, therefore, to the States, which immediately went about secularizing it by passing laws that restrict, regulate, and respect it as a legal contract. Ok, we want it secular, great. Now we need to deal with the ramifications, which include one religion NOT being able to tell the society as a whole what the legal definition is.

You are free to not view my marriage as blessed by God. But you are NOT free, by virtue of my inalienable rights as a human, to legislate away my family's protections because you don't LIKE us and we don't follow your religious dogma or buy your psuedo-scientific 'reasons' why I'm not a fit parent, even though evidence demonstrates otherwise. You may get away with it, because half the country doesn't like us, either - but that doesn't mean it's right.

The above hissed in response by: Karen Lee [TypeKey Profile Page] at June 12, 2006 11:17 AM

The following hissed in response by: Dafydd ab Hugh

Karen Lee:

But you reserve the right to force me to accept as marriage any old heterosexual relationship. So it all comes down, again, to "You're gay and I don't like it."

Nope. Even heterosexual relationships must adhere to other rules before they can be considered marriages: they must be above a certain age, or else above a lower age but with parental approval; they must not be consanguineous; neither party can be already married; they must (in some places) pass a blood test; they must obtain and pay for a license; they must go through a particular legal ritual.

A mixed-sex relationship cannot be a marriage unless it satisfies these requirements as well.

We're not looking for "approval". I don't have to approve of your marriage, why should you have to approve of mine?

I don't have to approve; society does. And of course society had to approve of my marriage... it had to satisfy the same laws as yours.

The only reason we have different legal standing is that I'm gay and you're not.

No, it has nothing to do with your sexual preference. Let's be specific and accurate: the difference is that I wanted to marry a person of the opposite sex, while you want to marry a person of the same sex. Your sexual preference is irrelevant: there is no bar to a gay man marrying a lesbian.

But being gay is not illegal like burning tires is. So no, I have not given up the liberty to decide for myself who I want to build a family with. Because my family is not illegal, it deserves the protections that other families get.

I have no problem with that. Maybe in all the excitement you missed the point that I completely support Lawrence v. Texas; I have been agitating against so-called "anti-sodomy" laws for literally decades.

You have, indeed, the exact, same protections for your family as does anyone else in the same category as you: families in which the principals, for whatever reason, cannot marry.

Thus, you have the same legal protections as any other "common-law" marriage: suppose a man loves a woman, but the woman is already married; they cannot marry, but they can live together in a common-law marriage... and as such, they have certain rights.

Or suppose they happen to be first cousins, and they can never marry; same thing. Or maybe they both believe in polygamy, and the two of them wish they could marry a third woman: again, they cannot legally do so, but they still have some rights simply by virtue of living together.

What you do not have the right to do is legally marry a person of the same sex. There is no constitutional bar to a state voting to change the law to allow same-sex marriage; if you can convince the legislature or the people of Oklahoma or Connecticut or Maine or wherever you live to vote that way, then you can marry your girlfriend.

(Maybe you didn't notice -- I'm not sure you actually read this post -- but that's what this post is about: I am complaining that the Federal Marriage Amendment would indeed make it unconstitutional for a state to vote to make SSM legal and suggesting that a more federalist amendment would be better public policy and more likely to pass.)

But neither is there any constitutional right to same-sex marriage, or consanginuieous marriage, or polygamy or polyandry, or line marriages, group marriages, or anything else. The Consititution is silent about marriage.

There has never been such a right. There is no such right now. And despite courts like the Supreme Judicial Court of Massachusetts and several low-level judges here and there across the country, you will never get such a right from the courts... because the reaction of people across the country to such judicial tyranny has been, in state after state, to enshrine the traditional definition of marriage in the state constitution.

That is called a push-back, KL. And it's a reaction, not to the idea of same-sex marriage, but to the contempt for democracy shown by those who try to judicially implement same-sex marriage in complete defiance of the will of the people.

That is what this post is about.

If you disagree with the law restricting marriage to a single man and a single woman, then work to change it: work to persuade the people of your state to vote for it in referendum; work to persuade your state legislature.

(I wouldn't recommend you move to Massachusetts, because as soon as they can have a traditional marriage amendment on the state ballot -- probably in 2008 -- such marriages will likely be nullified.)

Traditional marriage is a basic, fundamental, existential definition of society. Courts should not change such existential definitions; if they are to change, then as with racism, they should be changed democratically at the ballot box.

That's the way it has worked; that's the way it should work.

Also, the time that marriage was a religious convenant only was the moment our nation was conceived. Nothing was said about it in the constitution. It was reserved, therefore, to the States, which immediately went about secularizing it by passing laws that restrict, regulate, and respect it as a legal contract.

Oh, that's not true and you know it, Karen Lee. The United States didn't spring into existence ex nihilio; the states were previously states under the Articles of Confederation; and before that, they were colonies of England. In both cases, there were secular laws defining marriage... and in neither case was same-sex marriage legal.

Prior to whites arriving here, there were numerous Indian tribes... and in those tribes, there were rules governing who could be considered married. The rules might vary from tribe to tribe, but each tribe certainly had rules.

Every society has rules governing "relationships."

You are free to not view my marriage as blessed by God.

I have no idea whether your "marriage" is blessed by God. I have no opinion on that subject. For that matter, what makes you think I even believe in God? I don't think I've ever discussed my beliefs on Big Lizards; but if I have, I've noted that I'm an agnostic.

I have the sneaking suspicion that, in your mind, the only people who could possibly oppose same-sex marriage are Fundamentalist or Evangelical Christians. There's your problem right there: you are completely unaware of the very widespread and deep-rooted support for traditional marriage among people of all religions and of no religion.

That makes it virtually impossible for you effectively to campaign for SSM in your state... you think all you need do is demonize the "religious Right," and you'll win. I warn you that support for traditional marriage is much broader than that and even includes a majority of people who consider themselves liberal and secular (let alone the religious Left).

But you are NOT free, by virtue of my inalienable rights as a human, to legislate away my family's protections because you don't LIKE us and we don't follow your religious dogma or buy your psuedo-scientific 'reasons' why I'm not a fit parent, even though evidence demonstrates otherwise. You may get away with it, because half the country doesn't like us, either - but that doesn't mean it's right.

Your delusions of persecution are also not reasons to change the definition of marriage.

Your inalienable rights have been defined, by statute and caselaw, and they do not include every whim that crosses your mind. Just as I have no right (inalienable or otherwise) to legally marry two different women or my cousin, you (and I) have no right to legally marry a person of the same sex.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at June 12, 2006 1:21 PM

Post a comment

Thanks for hissing in, . Now you can slither in with a comment, o wise. (sign out)

(If you haven't hissed a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Hang loose; don't shed your skin!)


Remember me unto the end of days?


© 2005-2009 by Dafydd ab Hugh - All Rights Reserved