As all of America knows by now, some low-level judge in Iowa found the Iowa Defense of Marriage Act unconstitutional and ordered the court to issue marriage licenses to six gay couples. Mitt Romney immediately released a statement condemning the ruling as “an activist court and unelected judges trying to redefine marriage as disregard the will of the people….”
Unsatisfied with its wholly accurate opening volley, the Romney campaign added that “this once again highlights the need for a Federal Marriage Amendment to protect the traditional definition of marriage as between one man and one woman.”
R4’08 contributor Justin Hart trumpeted Romney’s support for a federal constitutional amendment defining marriage as between one man and one woman. He opined that “gay marriage in the Boston Harbor is one thing…but in Dubuque?”
Before we grab our pitchforks and rush the office of our federal legislators, let’s all take a deep breath and ask the following question: “In what way does this court’s action, today, provoke the need to amend the federal constitution to protect traditional marriage?”
The answer, quite simply, is that it does not.
Let’s first look at the source of the ruling. Any decision of this nature being rendered by a state court judge would be made at the lowest level of judicial decision-making: a court not of record. That means that this decision still has to be reviewed by a different judge in the same county court – in a court of record – before it can even get to the state court appeal level. So, this decision will have to survive review at three levels (court of record, court of appeals, Iowa Supreme Court) before it would have statewide effect. This leads us to our next point…STATEwide effect.
Even If this ruling manages the unlikely feat of surviving three levels of state judicial review in socially conservative Iowa, its effect would only be on the state of Iowa. It would not effect, nor should it affect, any other state. Virginia would not be required to recognize Iowa gay marriages, just as Virginia is not required to accept those (somehow more acceptable) Massachusetts gay marriages.
Iowa’s citizens would be free to exercise their will by amending the state constitution. And therein lies the solution.
So, ask yourself again, in what way does this preliminary decision by a low-level state court judge affect the sovereignty of other states so as to provoke amendment of the federal constitution?
It doesn’t. And for that we should be glad. Aside from being patently unwise at this point, it would be electoral folly. Commenter “cwpete” added this nugget of wisdom in the R4’08 comments: “Great, Now IA can join the list of other states that have amended their Constitutions. I was surprised to hear that IA had not already done so. This could help swing the state for the Republicans in 2008. Let the (sic) push this & push this hard.”
Well done, sir. You’ve earned a medal. Just like Romney, you’ve recognized this affair for its true value: electoral opportunity. But, unlike Romney, you were able to articulate a cogent point – that this is a state issue and that the party could make concrete gains by treating it that way. A constitutional amendment in Iowa is the appropriate response to a problem peculiar to Iowa. A federal constitutional amendment like the one that Romney proposes would short-circuit our federal system in precisely the same fashion as Roe v. Wade – it would cut short the slow, steady progress of the public discourse and impose a one-size-fits all solution that later (or even current) generations might find repugnant.
Kavon, Justin, and others rightly noted that this is an activist judge overruling the will of the people of Iowa. But, what if a federal constitutional amendment was passed, and the New York legislature subsequently voted to institute gay marriage? The federal constitutional amendment would then serve to overrule the will of the people of New York. If you are fine with that concept, ask yourself this: why should the people of Iowa and 36 other states be able to tell New York and 12 other states what their marriage laws should be?
If, after answering that question, you can still say that the federal government should be able to dictate a state’s popularly-endorsed marriage policies, you may want to ask yourself another question: ”Am I in the correct political party?”
Roe v. Wade short circuited the slow but steady resolution of the abortion issue at the state level and turned it into a multi-generational culture war where the only winners have been the politicians savvy enough to demagogue the issue into a victory at the polls. Mitt Romney is attempting the same feat. A constitutional amendment banning gay marriage would serve to short-circuit the public policy debate that has been going on in the states for about a decade now. One would think that Republicans, and especially social conservatives, would have learned the lesson of Roe. But, it appears that many have not. Sadly for our republic, a federal constitutional amendment defining marriage may yield the ironic result of a the anti-Roe forces visiting their own personal hell on their foes – and by doing so cause the same lasting damage to our federal republic.
August 30th, 2007 at 7:40 pm
[...] post by Michael Lawrence and software by Elliott [...]
August 30th, 2007 at 7:43 pm
Michael:
” But, unlike Romney, you were able to articulate a cogent point – that this is a state issue and that the party could make concrete gains by treating it that way.”
Assuming that you were still addressing me, I tried to make that same point (state issue) in my comments 5 & 11 here:
http://race42008.com/2007/08/30/gay-marriage-in-iowa/#comment-141693
…both comments were posted before this post by only a few mins.
No worries…
August 30th, 2007 at 7:46 pm
My apologies Michael, Just ignore my #2 please..
August 30th, 2007 at 7:56 pm
I think you’re missing the true intentions that social conservatives have. I don’t think that this is about preventing states from forcing gay marriages on other states, states have never been required to recognize marriages that go against their public policy. This is enshrining a ban on gay marriage in the constitution while they have the chance. I do believe that gay marriage is inevitable, and without an amendment, a majority of states will allow it by 2050 (just an uneducated guess).
‘One would think that Republicans, and especially social conservatives, would have learned the lesson of Roe.’
I think they have. They got burnt by Roe, now they are using Roe-like methods to burn others. It’s not as if they aren’t savvy.
August 30th, 2007 at 8:04 pm
I think something that needs to be addressed, and hasn’t been very clear from the Romney campaign, is just what sort of marriage amendment is being considered. For example, the most recent versions seriously proposed in congress actually would allow same-sex marriage by legislative enactment of the states. http://en.wikipedia.org/wiki/Federal_Marriage_Amendment
Other conceivable alternatives would be re-enacting DOMA by amendment, effectively taking the issue out of the hands of federal judges, fully ensure the various states would not have to recognize same-sex marriages in other states, but still allow individual states to carry out their policy preferences.
Something else to remember is that Romney contained the effects of the Massachusetts decision by enforcing what was envisioned as an anti-miscegenation statute to not allow out of state gay couples to marry in MA.
I’ll admit that if Romney himself ultimately envisions something more limited and DOMA-like, he is playing with words and engaging in a bit of demagoguery by allowing the impression to stand that he is for a total national ban.
August 30th, 2007 at 8:05 pm
In defense of a constitutional amendment I can cite two examples where the influence of judges eventually led to national judicial mandates against prior legislative preferences.
In 1977 Willian Brennan penned an article for the Harvard Law Review urging state appellate judges to expansively re-interpret individual rights. Many states (California and Georgia among them) headed this advice. This is the danger of the highest courts influencing judicial norms to the lower courts thus pre-empting any state legislative action. This is where Article IV comes into play.
Second, In 1965 Grisworld v. Conn. was struck down which dealt a blow to anti-contraception legislation. The Connecticut legislature chose to keep stricter contraception laws in place. The Supreme Court imposed a national mandate against such statutes.
In short, the logic in favor of a marriage amendment has a lot to do with ensuring individual and even federalist rights. Indeed, many of the current incarnations of the marriage amendment focus on the notion of states rights to define marriage – buffeting legislatures against a judicial will run amok.
August 30th, 2007 at 8:10 pm
Before we grab our pitchforks and rush the office of our federal legislators
I made the exact same analogy the other night about the same candidate
August 30th, 2007 at 8:13 pm
Excellent article. I liked this:
” But, what if a federal constitutional amendment was passed, and the New York legislature subsequently voted to institute gay marriage? The federal constitutional amendment would then serve to overrule the will of the people of New York.”
And it outlines the utter nonsensical “logic” of the so-con set.
August 30th, 2007 at 8:23 pm
#8 – if you’d bother to read the most recently proposed amendment, you’d see it’s phrased such that if the NY legislature indeed passed such a law, it would stand. It presently only blocks reading the federal or state constitutions to require same-sex marriage, which is something different. If I were running the show, I’d make it even narrower (i.e., it doesn’t presently allow state amendments in favor of same-sex marriage, and imposes limits on state judiciaries which I’d rather it didn’t), but I’m comfortable enough with the phrasing as it stands to say I’d vote for it.
August 30th, 2007 at 8:26 pm
‘Second, In 1965 Grisworld v. Conn. was struck down which dealt a blow to anti-contraception legislation. ‘
Lord, have mercy on us. I didn’t know that I was supposed to be bothered by this. The Supreme Court got its dagger out, and went right for the heart of Anti-Contraception Legislation. While the Supreme Court pulled out the bloodied dagger out of ACL’s heart, it spoke its dying words: “BURN IN HELL HEATHENS” and it fell to the ground. The Supreme Court, not content having slain this noble entity, proceeded to desecrate its body. Thus ended the era of anti-contraception legislation. Is it any surpise that 9/11 happened after Griswold? Think about it.
Look where this murder has led us. Some thug comes to my girlfriend every day, puts a gun against her head and forces her to buy and use contraception. It is madness. The only solution is to ban contraception entirely. I think it’s the same guy who visits social conservatives and forces them to watch the pornographic materials that hotels offer. No wonder they’re so concerned about hotels offering pornography. If the hotel doesn’t offer pornography, the thug is powerless.
We really need a constitutional amendment banning birth control, condoms, abortion and any sex act that does not result in procreation. This is about securing indivual rights and even federalist rights. I mean, states right now don’t have the right to be forced by the federal government to ban these things. Only with this amendment will we truly be free – when I have the right to dictate other people’s lives.
August 30th, 2007 at 8:41 pm
Marriage, Sure Why Not!!? Adoption, Absolutely NOT!!!
August 30th, 2007 at 8:43 pm
Michael, amending the constitution does not “short circuit our federal system in precisely the same fashion as Roe v. Wade.” Amending the constitution is a process that reflects the most fundamental principles of democracy (a supermajority of the states agree to make changes to the fundamental legal document that governs our lives). In contrast, Roe v. Wade was an instance where nine unelected judges acted to take away the will of the people. One is the epitome of democracy while the other is the antithesis. To equate them is ridiculous.
You may disagree with Romney’s proposal to amend the constitution, but Romney is going about it the right way – the way that allows the PEOPLE to choose rather than nine unelected judges.
As far as your substantive objections to a constitutional ban on gay marriage, doesn’t the full faith and credit clause of the constitution requires other states to recognize marriages performed sister states? If so, then cleary the amendment is needed to prevent Massachussets from imposing its policies on all other states.
August 30th, 2007 at 8:47 pm
TLG, laws by nature almost always overrule the will of some of the people. I bet most pedophiles feel that the laws have overruled their desire to act as deranged perverts. The bottom line is that if a supermajority of states agree, then, yes, some other people that disagree will be overruled. That’s the nature of democracy. We can’t have small groups of people effectively overruling the will of supermajority of the people – that sounds more like tyranny to me.
August 30th, 2007 at 9:01 pm
#11
Point 1:
Here is how equate 9 justices and a supermajority of other states at the federal level: in either case, the few states who wish to adopt a policy that goes against the supermajority are denied their ability to do so. This offends the idea of federalism.
I agree with you that one mechanism is always legitimate (amendment) while the other is sometimes not (judicial fiat). You rest your argument on that distinction. You correctly define where the power lies. However, you fail to justify the exercise of that legitimate power to subvert the current rule of law to the detriment of a minority.
I would posit that, although it can be legitimately exercised at any time by a supermajority, the amendment power is only appropriately exercised when a constitutional flaw exists that allows a state to dictate the policies of the other 49. It should not be exercised to allow 49 states to dictate the polices of one state, if that one state’s policy does not impair the sovereignty of the other 49.
Point 2:
It can be argued that the Full Faith and Credit Clause can be used to force states to recognize the marriage of sister states. But, the more widely accepted interpretation would not.
This is because teh FFCC requires states to recognize the judgments of other states, but not their laws. This was designed to prevent debtors from escaping their obligations under one state’s judgments by escaping to another state. Thus, each state was forced to recognize the JUDGMENTS of other states. However, a marriage is not a judgment. Rather, a marriage is an act of the executive branch executing the legislature’s decision to grant marriage to certain persons. That fact that a judge can perform a marriage is irrelevant – so can a priest.
In a gay marriage case such as this, a court does not issue a “judgment.” It issues an order directing the clerk to carry out the law. Since we are dealing with an order, not a judgment, FFCC does not apply to that marriage, and other states are free to ignore it.
Furthermore, should a state pass a statute, or allow gay marriage in the absence of a statute banning it, other states would not be required to recognize those marriages – since they are also not “judgments” of a court.
So. The full faith and credit clause argument is a red herring.
August 30th, 2007 at 9:49 pm
pb, there will always be a loser regardless of whether the law is imposed by nine justices or a supermajority of states. The existence of one or more losing states does not offend the idea of federalism. The states agreed a long time ago that they will give up their power if a super majority agreed to amend the constitution. The states decided that the super majority requirement sufficiently protected their interests – and it has, which is why there have been so few constitutional amendments. You seem to believe that the constitution should only be amended if there is unanimity (49 states should not dictate the policies of one), or possibly you simply believe that the constitution should never be amended (the equivalent of unanimity). If that’s the case, the constitution would never have been amended to abolish slavery, allow women to vote, etc. (by the way, in each of these cases, the super majority of states was imposing its will on the other states that voted against the amendment).
I am not an expert on the FFCC. However, the problems that I foresee will arise with regard to assets and disputes involving the “married” couple that cross state lines. It just seems that this could be a big problem in cases that involve lots of assets in other states. What happens in custody disputes that cross state lines? Or the divisoin of property that is scattered across the country? It just doesn’t seem feasible for one state to ignore that a gay couple has been married in another state.
August 30th, 2007 at 9:55 pm
“TLG, laws by nature almost always overrule the will of some of the people. I bet most pedophiles feel that the laws have overruled their desire to act as deranged perverts. The bottom line is that if a supermajority of states agree, then, yes, some other people that disagree will be overruled. That’s the nature of democracy. We can’t have small groups of people effectively overruling the will of supermajority of the people – that sounds more like tyranny to me.”
If it were up to me, nobody’s will would be overturned because the only function of the government would be to prevent force…
August 30th, 2007 at 9:58 pm
“#8 – if you’d bother to read the most recently proposed amendment, you’d see it’s phrased such that if the NY legislature indeed passed such a law, it would stand.”
There have been many proposed amendments, one stating “Marriage in the United States shall consist solely of a man and a woman.”
The most recently proposed one would serve no point.
Wasn’t the Constitution, anyway, supposed to be about limiting the powers of government!?~@#%^ What has happened that we’re not proposing amendments to LIMIT individual freedoms, not expand them..?
August 30th, 2007 at 10:19 pm
TLG,
The constitution was supposed to be about alot of things. But, it’s hard to say, with a straight face, that it was primarily designed to “limit the powers of government”. They’d just crapped a considerably more limited Articles of Confederation after more then 10 years had proven them a not so glorious failure. It’s far more accurate to say that the constitution was intended to limit some powers of government, relative to the English government circa 1776, and expand some powers of the government, relative to the Articles of Confederation, circa 1789. It always bothers me when people make sweeping statements like “the constitution was about limiting government, why aren’t we limiting government?” or “the constitution was about freedom, why are you taking away freedom?”
The constitution was created by a bunch of aristocrats. True, they were slightly more “visionary” and less “reactionary” then the aristocrats that lost, but they still possessed many of the sensibilities of aristocrats. And they certainly had no wish to “limit government” in an absolute sense. Thomas’s Jefferson’s vague support for revolutions every 15 years or so, notwithstanding. They had a stake in government. What they were trying to create was extraordinarily complex. Hundreds of books have been written on the subject. Thousands perhaps. And limited government certainly had a role to play. But, I’d suggest that their idea of limited government stemmed more from the structure of power, then from any broader conception of the word.
If you read the Federalist Papers, they’re constantly talking about, the need for “power to check power”. “Ambition to check ambition”. And that, on the whole, the sort of system they were proposing was a good one, because it tended to lead to more limited government. But, even that wasn’t complete. Another huge theme of the constitutional convention debates, and the Federalist Papers in particular, was the need for a “energetic executive”. It was, and is, a complex system, with many different priorities, goals, and concerns. And we’d do well not to simplify the government they created for us, to serve particular policy preferences.
August 30th, 2007 at 10:20 pm
They’d just scrapped*
August 30th, 2007 at 11:20 pm
#15: you misstate the position. The position is that the WISE policy is to permit states to act as they wish in their own realm without federal constitutional (or statutory) interference UNLESS the minority states’ position actually infringes on the sovereignty of the majority of states. That would not be the case with gay marriage since those marriages would not have to be recognized by other states.
You do raise a valid point with respect to child custody and division of property of gay couples being enforced by other states. I put it to you: what is the problem with that? That is exactly the purpose of the Full faith and credit clause. Enforcing another states’ gay marriage property division or child custody or child support judgment would not in any way infringe upon the rights or policies of the state that has to enforce it. The court would simply have to issue and order recognizing an already existing judgment in another state. Yes, that would require states to deal with the consequences of another state’s choice to allow gay marriage. But it’s not a consequence that interferes with that state’s constitutional sovereignty.
#18: you’re right. Best not to simply to serve policy preferences. But I don’t hear you citing anything in the federalist papers or constitution to support your proposition. You’re simply negating others arguments.
There were two primary interplays in the constitutional debates. Slavery was one. The other was the extent of federal powers and states’ rights. The framers got as much as they could out of federal power in the agreement that was made. That’s the limit contemplated, period.
August 31st, 2007 at 12:18 am
Matt –
“The constitution was supposed to be about alot of things. But, it’s hard to say, with a straight face, that it was primarily designed to “limit the powers of governmentâ€.”
Well, I meant aside from laying out what the functions of government *were* to be. They were quite few in number, may I add. Not that anyone really cares what the Founders intended anymore except libertarians.
“It always bothers me when people make sweeping statements like “the constitution was about limiting government, why aren’t we limiting government?†or “the constitution was about freedom, why are you taking away freedom?â€
The latter is a meaningless bromide, the former is a complete truth. The Founders did all they could to limit government — they just, as fallible human beings, weren’t 100% sure of how to set it up correctly. The AoC obviously failed. They gave it another successful whack afterwards, though obviously still flawed inasmuch as we’ve changed it 27 times and fought a war between the states.
“The constitution was created by a bunch of aristocrats. True, they were slightly more “visionary†and less “reactionary†then the aristocrats that lost, but they still possessed many of the sensibilities of aristocrats. And they certainly had no wish to “limit government†in an absolute sense. Thomas’s Jefferson’s vague support for revolutions every 15 years or so, notwithstanding.”
They wouldn’t have made the Articles of Confederation in the first place if they’d not intended to limit the powers of the federal government. They certainly did not mean for Congress to be doing whatever the hell it feels like doing, which is what it’s doing today. The Founders would be shocked out of their minds as to what’s going on in Congress today.
“They had a stake in government. What they were trying to create was extraordinarily complex. Hundreds of books have been written on the subject. Thousands perhaps. And limited government certainly had a role to play. But, I’d suggest that their idea of limited government stemmed more from the structure of power, then from any broader conception of the word.”
I didn’t say that the Founders were infallible or that the Constitution was perfect, but if we’re going to try to have the rule of law, we ought to follow it and not just do whatever we feel like doing.
“If you read the Federalist Papers, they’re constantly talking about, the need for “power to check powerâ€. “Ambition to check ambitionâ€.”
I would argue that this is a limited government position, inasmuch as A) The people elect, directly or indirectly, half (1.5/3; Senate was not elected directly at the time) of the branches to make decisions.
“And that, on the whole, the sort of system they were proposing was a good one, because it tended to lead to more limited government. But, even that wasn’t complete. Another huge theme of the constitutional convention debates, and the Federalist Papers in particular, was the need for a “energetic executiveâ€. It was, and is, a complex system…”
The powers of the executive are quite limited. It is his power as a popular leader, able to persuade elected representatives, that can really get things done. (Jay Cost wrote an excellent piece on how Bush never really learned how to play politics well, and now he’s lost all but his Constitutional powers — which are rather slim.) As a popular president making good policy proposals, you can be quite a powerful one, indeed. But only if you’re popular.
In other words — an executive is responsible to the peoples’ representatives. If Congress sees that affiliating itself with the President is political suicide, no one will do it. It’s just another way the checks and balances system works so well. The Founders did not want an executive that has many powers on his own, as you seem to imply.
August 31st, 2007 at 11:06 am
pb,
In your resopnse, tou are arguing the merits of amending the constitution to ban gay marriage. Your position seems to be that the constitution should not be amended unless the minority states are infringing on the sovereignty of the majority states. My original point, however, had nothing to do with the merits of the ban. Rather, I was simply pointing out that amending the constitution is in no way, shape, or form similar to nine elected judges imposing their will by fiat. Amending the constitution is the right process for trying to implement change.
As for the merits of your argument, I would repeat that under “infringe on the sovereignty of the majority states” standard, I can’t think of any single amendment so far that would have passed, including banning slavery and allowing women to vote. Some times a majority of states make value judgements and impose them on all of the other states (i.e., slavery is bad, we are going to ban it). I don’t see anything inherently wrong with it.
One last point. Isn’t forcing one state to recognize the legal consequences of a gay marriage entered into in another state (e.g., the property rights example you provided) the same for all practical purposes as forcing the one state to recognize and acknowledge gay marriage?
August 31st, 2007 at 1:34 pm
Pb, color me an ignorant, which I am, but is not there pretty much a challenges of DOMA in many states’ courts at this moment (at least 9 states that I am aware of)? I admittedly think the soc-cons have lost faith in the neutrality of the courts, and that they may be panicking in ensuring that DOMA is not overrode in one state, or else the effect will go throughout the country. But then we do have some history of quite liberal judges, such as the west’s 9th Circuit. Considering that the Supreme Court can hear only less than 1% of the cases from the Federal Circuits and Districts, are we not in the right to be greatly concerned about defending the DOMA?
August 31st, 2007 at 5:38 pm
SGS:
SCOTUS would obviously hear a DOMA challenge.
I would have no problem with a constitutional amendment designed to protect state sovereignty by allowing each state to define marriage on its own. I do have a problem with a constitutional amendment that would usurp state sovereignty by defining marriage at a national level.
There is a difference on another level as well: the former would bolster the already-constitutionally-enshrined concept of federalism. The latter amendment would add social engineering into our governing document.
The Full Faith and Credit Clause argument is correctly cast as a “red herring” for the reasons discussed in the comments. Unless and until the Supreme Court says otherwise, let’s not fiddle with the constitution.
September 1st, 2007 at 12:26 am
“why should the people of Iowa and 36 other states be able to tell New York and 12 other states what their marriage laws should be”
That’s how the founding fathers set up the amendment process. If the majority of states want something to happen on the federal level, they can make it happen. That’s how amendments work.
This is similar to asking, “Why should 25 or so states tell the other states who the President of the United States should be?”
September 1st, 2007 at 8:53 pm
PnGrata (#5 & #9), you don’t know what you’re talking about. Every version of the Federal Marriage Amendment includes the same opening sentence, stating that marriage the U.S. is defined as an exclusively opposite-sex relationship. As even the Wikipedia article you site notes, “The first sentence . . . would prevent any state from allowing same-sex marriage, even if the voters of that state amended the state’s constitution to require recognition of same-sex marriages.”
The amendment is absurdly broad because, indeed, Alabama and Utah have no business telling New York or California whether either may allow same-sex marriages. And that’s why the proposal struggles to get even a bare majority in the Senate, let alone the two-thirds it would need to go to the states for ratification.
Polls break about 60-40 on same-sex marriage these days. With numbers like that, social conservatives will never get this crazy amendment through Congress, and should get over it. Support for a flag-burning amendment runs at 70 to 80 percent and THAT can’t even get through, let alone something that most Democrat and even some moderate Republicans will oppose.
Wiseguy, the fact that the amendment process would authorize amendments to obliterate federalism, states’ rights, and local control on every possible issue is accurate. But that point also is no rebuttal of the argument that such an extreme disruption of the federal system is a bad idea that shouldn’t be done. No one has suggested that the constitution couldn’t be amended, and that’s all your post addresses.
September 1st, 2007 at 9:08 pm
You know the other possibility in all this is that courts are not deciding these questions based on personal whims. Governments are denying same-sex couples hundreds and hundreds of legal rights across the board. It’s just possible that courts are impartial and correct in ruling that such a breathtaking denial of legal status to a class of people does, in fact, violate constitutional mandates that government not deny “>>any
September 1st, 2007 at 9:09 pm
You know the other possibility in all this is that courts are not deciding these questions based on personal whims. Governments are denying same-sex couples hundreds and hundreds of legal rights across the board. It’s just possible that courts are impartial and correct in ruling that such a breathtaking denial of legal status to a class of people does, in fact, violate constitutional mandates that government not deny “**any** person the equal protection of the laws.”
Indeed, opinions of courts rejecting these challenges are actually activist in one particular respect: They typically have to manipulate generally applicable, neutral rules established in precedents not involving same-sex marriage to avoid applying those rules and precedents to cases involving same-sex marriage. The NY high court provided the worst example of this. Having held in the past the prison inmates with no possibility for parole and no ability for conjugal visits had a fundamental right to marry, the NY court suddenly decided in the same-sex marriage case that procreation was essential to marriage. The NY court also indicated that discrimination against same-sex couples generally would require close judicial scrutiny, but not where marriage is the subject. That subject-matter bifurcation has no foundation in equal protection jurisprudence. The Washington Supreme Court, similarly had to resort to manipulation. It declared that it had no way to know whether homosexuality was a volitional choice. The courts also typically resort to an absurd claim about the reason for civil marriage exists: That the sole reason civil marriage was created was to coerce heterosexuals into a legal union to try to stabilize their relationships in case they accidentally procreate. No one in their right mind actually believes that was the motive for creating legal marriage or is the reason it remains on the books. Yet that kind of sophistry is what the NY court of appeals and several other courts have had to resort to in order to reject these constitutional challenges.
The fact that a court upholds a ban on same-sex marriage does not mean a court is impartial or that its opinion is persuasive or even correct. If all you base your evaluation of the judgment on is its outcome, then it is YOU who has no respect for the rule of law!
September 1st, 2007 at 10:25 pm
Hear hear, Steve. One of two points I hoped to make was that the rule of law is an end unto itself. The other was that the Federal Marriage Amendment would be bad policy that undermined out current constitutional structure in the same way that Roe did. I never, at any time, asserted the idea that amending the constitution was wrong in and of itself.
The problem with most people is that they cannot see beyond their desired outcome. Outcomes come and go. But, we only get one republic. We should have enough respect for it to think twice and really assess whether it is entirely necessary (like the amendments banning slavery) before we mess around with its governing document to serve our own purposes to the detriment of those with whom we may disagree personally. Especially where the law we hope to pass would limit the rights asserted by others (whereas the slavery amendments expanded or recognized rights asserted by others).
September 2nd, 2007 at 12:23 am
“A constitutional amendment in Iowa is the appropriate response to a problem peculiar to Iowa. A federal constitutional amendment like the one that Romney proposes would short-circuit our federal system in precisely the same fashion as Roe v. Wade”
No it wouldn’t because we can and we should do both. Defend marriage in every state and at the Federal level. It’s absurd to compare FMA with the odious Roe, since a constitutional amendment and a USSC ruling are different things, fait from the bench and an amendment agreed by supra-majority are not analogous, and since a single legal definition of marriage for USA that happens to aling with how marriage has been understood in western culture and law for 1500 years would in no way impair State rights to regulate traditional marriage as they see fit, and other relationships that are not marriage as they see fit.
“The fact that a court upholds a ban on same-sex marriage does not mean a court is impartial or that its opinion is persuasive or even correct.”
Marriage has been defined in the plain text of law. All the rulings creating gay marriage by judicial fiat have been based on activist errors from the get-go. Gay marriage and the wrongly-based rulings that have made it happen have been the real offense against the rule of law in this land. To decline to take umbrage at that while whining about (horrors) politics happening among politicians is a curious double standard. The ruling out of Massachusetts in 2003 was a textbook classic case of judicial activism and judicial malfeasance; they never should have ruled as they did. And the kicker is that the gay activists picked Massachusetts both because the Chief Justice promised to be friendly to them (judicial malfeasance issue) and because they new amending the State constitution would be a difficult thing to do.
There is so much sophistry from the anti-anti-gay-marriage crowd on this; FMA must be a pretty effective idea to see so much verbal BS thrown against it. Why dont you guys come out of the closet and admit that you really are just pro-gay-marriage ? The legalistic objections to FMA are pathetic. The real reason to oppose FMA is because you oppose the policy: marriage = one man and one woman only throughout USA.
“But then we do have some history of quite liberal judges, such as the west’s 9th Circuit. Considering that the Supreme Court can hear only less than 1% of the cases from the Federal Circuits and Districts, are we not in the right to be greatly concerned about defending the DOMA?”
The game plan for the gay marriage forces all along has been to leverage a few states gay marriage into a de facto 50 state gay marriage, by virtue of the fact that residents can move to marry, or move to another state and get divorced, etc., and bring their gay marriage relationship into a state that doesnt recognize such marriages; then what does a fmaily court do? Yes, DOMA WILL get challenged.
September 2nd, 2007 at 1:32 pm
“Why dont you guys come out of the closet and admit that you really are just pro-gay-marriage ? The legalistic objections to FMA are pathetic. The real reason to oppose FMA is because you oppose the policy: marriage = one man and one woman only throughout USA.”
Actually, Patrick, I oppose gay marriage. I believe that marriage is between a man and a woman. What I oppose are efforts to undermine state sovereignty by aggrandizing the federal government. Until a federal amendment is necessary, I will oppose it – especially in this instance where demogouges exaggerate the possibility that the Full Faith and Credit Clause will be interpreted to invalidate DOMA.
If we want to say the truth, let’s say it: you want the government to enforce your personal preferences at the point of a gun. I want to take the gun out of the government’s hand.