Ron Paul - Gay Marriage Quicksand

House Web Site ^ | 3-2-2003 | Rep. Ron Paul (R-TX)

[jmc813]

The President’s recent announcement that he supports a constitutional amendment defining marriage has intensified the gay marriage debate. It seems sad that we need government to define and regulate our most basic institutions.

Marriage is first and foremost a religious matter, not a government matter. Government is not moral and cannot make us moral. Law should reflect moral standards, of course, but morality comes from religion, from philosophy, from societal standards, from families, and from responsible individuals. We make a mistake when we look to government for moral leadership.

Marriage and divorce laws have always been crafted by states. In an ideal world, state governments enforce marriage contracts and settle divorces, but otherwise stay out of marriage. The federal government, granted only limited, enumerated powers in the Constitution, has no role whatsoever.

However, many Americans understandably fear that if gay marriage is legalized in one state, all other states will be forced to accept such marriages. They argue that the Full Faith and Credit Clause of the Constitution essentially federalizes the issue; hence a constitutional amendment is necessary.

But the Defense of Marriage Act, passed in 1996, explicitly authorizes states to refuse to recognize gay marriages performed in other states. Furthermore, the Supreme Court repeatedly has interpreted the Full Faith and Credit clause to allow Congress to limit the effect of state laws on other states. In fact, federal courts almost universally apply the clause only to state court judgments, not statutes. So a constitutional amendment is not necessary to address the issue of gay marriage, and will only drive yet another nail into the coffin of federalism. If we turn regulation of even domestic family relations over to the federal government, presumably anything can be federalized.

The choices are not limited to either banning gay marriage at the federal level, or giving up and accepting it as inevitable. A far better approach, rarely discussed, is for Congress to exercise its existing constitutional power to limit the jurisdiction of federal courts. Congress could statutorily remove whole issues like gay marriage from the federal judiciary, striking a blow against judicial tyranny and restoring some degree of states’ rights. We seem to have forgotten that the Supreme Court is supreme only over lower federal courts; it is not supreme over the other branches of government. The judiciary is co-equal under our federal system, but too often it serves as an unelected, unaccountable legislature.

It is great comedy to hear the secular, pro-gay left, so hostile to states’ rights in virtually every instance, suddenly discover the tyranny of centralized government. The newly minted protectors of local rule find themselves demanding: “Why should Washington dictate marriage standards for Massachusetts and California? Let the people of those states decide for themselves.” This is precisely the argument conservatives and libertarians have been making for decades! Why should Washington dictate education, abortion, environment, and labor rules to the states? The American people hold widely diverse views on virtually all political matters, and the Founders wanted the various state governments to most accurately reflect those views. This is the significance of the 10th Amendment, which the left in particular has abused for decades.

Social problems cannot be solved by constitutional amendments or government edicts. Nationalizing marriage laws will only grant more power over our lives to the federal government, even if for supposedly conservative ends. Throughout the 20th century, the relentless federalization of state law served the interests of the cultural left, and we should not kid ourselves that the same practice now can save freedom and morality. True conservatives and libertarians should understand that the solution to our moral and cultural decline does not lie in a strong centralized government.

[laotzu]

"We make a mistake when we look to government for moral leadership"

AMEN

Marriage should never have been the governments business.

[Unam Sanctam]

The Supreme Court can and probably will easily nationalize and Constitutionalize a right to gay marriage. DOMA as a mere statute is next to worthless. Ron Paul is blind.

[ClearCase_guy]

Social problems cannot be solved by constitutional amendments or government edicts.

The Civil War ended the problem of secession.
It was the government edict known as the Emancipation Proclamtion that freed the slaves. And it was a Constituional Amendment (14) that nailed it down.

I disagree with Paul on this. The Gay Marriage fiasco has a lot in common with Dred Scott:

"I'm a slave in this southern state. If I go to a northern state, am I still a slave?"
"I'm married in this state. If I go to that state, am I still married?"

[azhenfud]

The DOMA wouldn't need constitutionalizing if states LISTENED to their own voters:


California Proposition 22


Proposition 22

On March 7, 2000, the people of California voted on Proposition 22, a proposal to enact a state "Defense of Marriage Act" as an initiative statute. The text of Prop 22 reads:

“Only marriage between a man and a woman
is valid or recognized in California.”

Proposition 22 was ratified by an overwhelming majority of California voters, prevailing by a 23-point margin. Statewide, 4,618,673 votes were cast in favor of the proposition, comprising 61.4% of the total vote. Opponents garnered 2,909,370 votes, for 38.6% of the vote.

Final vote counts revealed that Proposition 22 won in 52 of California's 58 counties, including all of the major metropolitan areas except for San Francisco. The six counties which did not approve Prop. 22 were all in the immediate San Francisco Bay area, including: Alameda county, Marin county, San Francisco county, Santa Cruz county, Sonoma county, and Yolo county.

Full election returns are available on the California Secretary of State website (PDF - 73KB).

[LandofLincoln]

True conservatives and libertarians should understand that the solution to our moral and cultural decline does not lie in a strong centralized government.

I realize it. EVERYTHING that the Federal Government has gotten into, has gotten progressively worse under their watch.

[The Gunner]

Problem is, the IRS made it "Government business".

[maeng]

One does not need sight to realize that so-called gay marriage is wrong! Ron Paul is right-on!

[MarcoPolo]

I love Ron Paul.

I have been wary of any federal intervention as well, but I was concerned that the Full Faith Clause would make my state recognize gay marriage against its will. I am happy however to see that there is already a federal act which defines what can and cannot fall under that clause for protection.

This would make a Constitutional amendment superfluous. I agree that placing something so personal and intimate as marriage under federal jurisdiction only serves the purposes of the evil left. They will use this precedent to make other federal laws regarding marriage which we would not at all agree with.

[maeng]

One does not need sight to realize that so-called gay marriage is wrong! Ron Paul is right-on!

[Qwinn]

It was a great and well thought out article until this line:

"In fact, federal courts almost universally apply the [full faith and credit] clause only to state court judgments, not statutes. So a constitutional amendment is not necessary to address the issue of gay marriage."

Erm. Duh. Was the MA rationalization of gay marriage enacted by the legislature, or was it mandated by a STATE COURT JUDGEMENT?

The States won't enact gay marriage through a legislature - they can't, not on any wide scale. Maybe a state or three at best, and it's obvious that won't be enough for them. They'll make a COURT JUDGEMENT that gay marriage -must- be legal, and as this author points out, the Supreme Court -does- apply the full faith and credit clause to STATE COURT JUDGEMENTS.

And besides, the entire full faith and credit issue is utterly beside the point. The federal government has to have a position of it's own, regardless of whether or not it forces the States to adhere to their position. Federal taxes, social security benefits, a dozen other issues - the federal government interacts -directly- with married couples on a regular basis. It is not practical (nor Constitutional) for the federal government to apply it's rules on SS and taxes based on the laws that happen to be in place in the state in question. The federal government -must- treat all citizens of all States the same, regardless of what State they live in.

Even if some States legalize gay marriage, and some don't, and the feds do not force those that don't from recognizing them, the federal government -itself- still has to take a position for the sake of taxes, social security, etc. Which is what makes all the arguing about the full faith and credit clause rather pointless - or at least only relevant insofar as whether the federal government will impose it's inevitable decision on every State.

Qwinn

[DSHambone]

Ron is almost right here. We need to end Civil Marriage and just have Family Registration for those that want to establish a basis for paternity, taxes, inhertiance, medical, and end-of life issues. And that would be open to same-sex couples on a State by State basis.

[frossca]

Would someone please clear something up for me?

The homosexual lobby is going to hang their hat (or should I say veil) on the full faith and credit clause to have there "marriages" recognized in every state.

Then, if my state allows me to carry a concealed weapon, should I not then be allowed to carry it in New York?

[Doctor Stochastic]

This is an example of the great alliance between Liberals and Conservatives: both wish marriage to be a governmental institution and thus subject to political whims. Each group group hopes that the political winds will blow their way, at least for a while.

[LiteKeeper]

read later

[Austin Willard Wright]

I agree with Paul but unfortunately the family is pretty much dead or dying anyway as the welfare state takes over its former functions. The debate over gay marriage is ultimately beside the point if this trend continues.

[epluribus_2]

Wrong Ron. It is not entirely or maybe not even mostly a religious issue. It's not even a love and committment issue. It is a financial issue. Period. Follow the flaming purple money. It is my company having to pay to insure this relationship for no good reason, whereas real marriages are supported by institutions and government because real marriages often need one spouse to be unable to work to have and raise our future citizens.

[ml/nj]

Marriage should never have been the governments business.

Maybe.

But it has been for as long as any of us can remember. We got a license from the government to get married. All sorts of property (and other) laws refer to marriage. By changing the definition of marriage, we change all those laws too. It's a very bad idea, undoubtedly laced with all sorts of unintended consequences.

ML/NJ

[billbears]

bump later

[Protagoras]

Ron Paul is blind.

Others should have such vision.

[Protagoras]

Erm. Duh. Was the MA rationalization of gay marriage enacted by the legislature, or was it mandated by a STATE COURT JUDGEMENT?"

In fact, federal courts almost universally apply the [full faith and credit] clause only to state court judgments, not statutes. So a constitutional amendment is not necessary to address the issue of gay marriage."

The second disproves the first. You were right the first time, it was a great and well thought out article.

[steve50]

Wrong Ron. It is not entirely or maybe not even mostly a religious issue. It's not even a love and committment issue. It is a financial issue. Period.

Then the proposed amendment is useless. Even those who want the ban on marriages are calling for "civil union" laws which give all the financial rights, making the whole thing a battle over terminology.

[KC Burke]

A far better approach, rarely discussed, is for Congress to exercise its existing constitutional power to limit the jurisdiction of federal courts. Congress could statutorily remove whole issues like gay marriage from the federal judiciary, striking a blow against judicial tyranny and restoring some degree of states’ rights.

If he is saying, amend the Defense of Marriage act and add language taking it, and related matters of full faith and credit regarding state-to-state and state-to-federal-program acknowledgment, outside of federal court review I would agree with his article.

As for what the appeal history has been on the full faith and credit clause, we will have to wait for those of legal history knowledge to confirm or deny.

[FUMETTI]

There is no such thing as gay marriage. I usually call it gay "marriage" because it just is not marriage. Society already defined it as a union between a man and a woman, so there gays in their glee will never be married unless they meet someone of the opposite sex and legalize their union. I could care less how "committed and in love" the gays are.

[livius]

What you say is true. This is why I agree with this line in the article:

a far better approach, rarely discussed, is for Congress to exercise its existing constitutional power to limit the jurisdiction of federal courts.

However, that would depend on getting a heavily GOP Congress. The Dems are happy with the status quo, because the activist judiciary is essentially putting into place all of the things they knew they could never get legislatively.

[LandofLincoln]

This is an example of the great alliance between Liberals and Conservatives:

YEAH, it does explain it. As I have explained it ... (THE RIGHT HAS BECOME THE LEFT)

[LandofLincoln]

that would depend on getting a heavily GOP Congress

WHHHHAT?

[walden]

A far better approach, rarely discussed, is for Congress to exercise its existing constitutional power to limit the jurisdiction of federal courts. Congress could statutorily remove whole issues like gay marriage from the federal judiciary, striking a blow against judicial tyranny and restoring some degree of states’ rights. We seem to have forgotten that the Supreme Court is supreme only over lower federal courts; it is not supreme over the other branches of government. The judiciary is co-equal under our federal system, but too often it serves as an unelected, unaccountable legislature.

This is the REAL answer, and he's absolutely right on it. In fact, I would like to see Congress remove all matters of human sexuality from the purview of the court-- they can do it, and it would essentially invalidate Roe, Lawrence, and who knows what else.

By the way, the Federalist folks are working with members of Congress now on this issue, from what I read on their website. This issue is very much in flux, and I think there are better answers than the FMA floating around.

[gobucks]

Your point is well made and cogent.

I understand, however, the spirit behind P. Paul's words. I think he's on the right track about going after the courts themselves, but I see virtually nothing happening on that. Too many have bought the notion the black robes signify something meaningful - some intangible 'spiritual' thing, sort of like tenured professors at Ivy League colleges.

The book of Judges, not an easy read, is interesting in the implications of what we in the USA should see coming after the age of our Judges comes to an end ...

[Adder]

"But the Defense of Marriage Act, passed in 1996, explicitly authorizes states to refuse to recognize gay marriages performed in other states. Furthermore, the Supreme Court repeatedly has interpreted the Full Faith and Credit clause to allow Congress to limit the effect of state laws on other states. In fact, federal courts almost universally apply the clause only to state court judgments, not statutes."

I'm no lawyer nor do I play one on TV but I don't think that a statute can stand against the constitution. All the SCOTUS has to do is strike down the DOMA on the grounds that its not done like that in Europe and the "full faith and credit" clause is in effect.

[shhrubbery!]

In fact, federal courts almost universally apply the clause only to state court judgments, not statutes.

Well then, Mr. Paul, the Massachusetts state court has already legalized homosexual 'marriage.'

This fact negates your premise -- that a constitutional amendment isn't needed because 'federal courts almost universally apply the [full-faith-and-credit] clause only to state court judgments.'

[EdReform]

Ping

What We Can Do To Help Defeat the "Gay" Agenda

Homosexual Agenda: Categorical Index of Links (Version 1.1)

The Stamp of Normality

[laotzu]

"But it has been for as long as any of us can remember"

Ahh, the comforts of resigning ourselves to government rule.

They tell us how to marry, divorce, be born, die, and even how big our toilet should be. And we choose to haggle over on what side our master should part his hair.

I don't know who is more to blame. Our government task-master, or my willing-to-be-a-slave Republican neighbors.

[freedomluvr1778]

They'll make a COURT JUDGEMENT that gay marriage -must- be legal, and as this author points out, the Supreme Court -does- apply the full faith and credit clause to STATE COURT JUDGEMENTS.

No, like in the case of Mass., the court said the LEGISLATURE had to make the law. No court, has, or can, craft the law itself.

Paul is 100% correct here.

[AnalogReigns]

It's incredibly naive and ignorant of history to say "marriage should never have been the government's business."

We don't deal in "should haves" in real life, and marriage, since the dawn of civilization, always has been (as much as its always been between a man and a woman) the government's business. Since marriage involves publicly enforceable obligations and rights, government gets involved.

To say marriage is a religious thing...well true, and religion, 300+ years ago, had governmental authority--and so then dealt with marriage and family-court issues. Since there is no possibility of (any particular) religion (other than secularism...) taking on an enforceable governmental role, marriage is left to the government, which (mostly) now is the states.

I would agree with Ron Paul that legislators should have the guts to finally reign in the courts. However, reality and history say otherwise. Politicians seem never to have found a hard decision they wouldn't rather pass on to someone else, often the courts. They will not even try the legislative answer (of limiting jurisdiction of courts) and even if any did, a cacophony of loud voices, from all parts of the political spectrum, would defeat them. His answer is good in theory--and may have been possible 40+ years ago, but not anymore.

Not only that, but radically different marriage laws in every state will be a huge problem in decades to come--even if (fantasy!) the federal courts stay out.

If you trust your politicians to reign in the courts, then oppose the marriage amendment.

I for one will support it whole heartedly. It will be lovely to see an area where the courts simply cannot go.

[freedomluvr1778]

Well then, Mr. Paul, the Massachusetts state court has already legalized homosexual 'marriage.'

No it didn't. It said the legislature must write legislation. This is a huge difference when considering the Full Faith and Credit Clause.

Judgements handed down by State courts include allimony, jury awards and the like. That's what the FFCC applies to, not simple rulings on the legality of a State law.

[laotzu]

"marriage, since the dawn of civilization, always has been the government's business"

To paraphrase: We have always been slaves, and should continue to be so. It is naive to consider otherwise.

For what little it is worth; marriage has not always been the government's business.

[freedomluvr1778]

If he is saying, amend the Defense of Marriage act and add language taking it, and related matters of full faith and credit regarding state-to-state and state-to-federal-program acknowledgment, outside of federal court review I would agree with his article.

I think Mr. Paul is saying that the DOMA actually solves this problem of States not wanting "gay marriage" recognition to be forced upon them by the FFCC, but we can go ahead and nip this in the bud, preventing any future problems by having Congress draft legislation forever removing the federal judiciary from issues relating to marriage. That would make it soley a State issue, and it would prevent those wanting to force "gay marriage" on the entire nation from bringing additional federal suits on different "grounds" every time the last suit is dismissed.

That's my take, at least.

[laotzu]

"We don't deal in "should haves" in real life"

Why? Why won't you deal with "should haves"? Why do you resign yourself to established wrongs; and submit yourself, & your neighbors, to the continuation of those wrongs?

Does every struggle for what "should have" warrant your insults of "naive & ignorant"? Can you be counted on in any such struggle?

[Republic If You Can Keep It]

Ron Paul is blind

Yep.

Maybe he'll start to get his vision back after DOMA is stuck down & gay marriage thus mandated throughout the country.

A lot of folks will be seeing more clearly then.

[mrsmith]

Marriage has always been heavily regulated by the government in Amreica. Dowries, inheritances and reponsibility for children were enforced; kidnappings and feuds were avoided.
Man's earlier tribal governments were even more involved in regulating families- it is the very definition of those governments.

Want government out of marriage? Then make a case for that drastic change- don't decieve yourself about history.

[bc2]

A huge Ron Paul bump. Here's my canned response on the marriage issue:

Certainly, words have definitions. Marriage, by definition, is a union of 1 man and 1 woman in front of God facilitated by their Church. But is the US Constitution the place to define this?

The solution to the gay marriage issue is quite simple, but of course anyone who is a student of government knows that once a government has assumed some power, they never give it up without force.

Granting, regulating, or performing marriages is not a legitimate function of government at any level, but certainly not the Federal level. Marriage is a contract between a man and a woman and God, facilitated by their Church. Anything else is simply either common law marriage or some kind of civil union. Free people should be outraged that government has assumed the power to regulate something that is very personal and religious.

Someone corrected me on another thread and said that Justice Of The Peace weddings were part of common law that predicated the US Constitution. I don't know if this is fact, I would like someone to give me more info if they have any on this issue. I still feel that we must end marriage licenses and we must end justice of the peace weddings. Leave marriage to the private sector and to the Churches. It should be up to employers, private insurance companies and HMO's whether or not they want to recognize same-sex marriages and give same-sex partners access to health care, insurance policies, etc.

Some Churches will perform and recognize same-sex marriages. Some insurance companies will recognize them as well. Others will not. This is still, for now, a relatively free country.

The real threat to freedom and the average American way of life is first of all, the activist judges that are the real cause of this problem in the first place, and subsequently anyone who thinks that the Constitution should be amended for this type of reason. Amending the Constitution for this is bad politics, it's bad policy, and it's bad precedent. Instead of giving the government more power and enabling them to regulate even more of our private lives, we should take a little bit of our freedoms back and get the government out of the private issue of marriage, and leave it up to Churches and the private sector.

As someone brought to my attention on another thread, one of the main issues here isn't really the "gay issue", it's the "activist judge issue", and that is what must be addressed long before we amend the Constitution to define marriage.

The fact that no one has brought this up as a solution should be troubling in and of itself.

[laotzu]

"Then make a case for that drastic change"

Alright.

Your beloved government is about to make it "legal" for gay marriges to occur.

[laotzu]

marriges=marriages

[AnalogReigns]

Life is dealing with what SHOULD BE coming from WHAT IS.

Marriage is, and always has been, a governmental affair. Show me the most primitive tribe in New Guinea, and I will show you publicly enforceable obligations regarding marriage.

Its libertarian college bull session fantasy to ponder otherwise.

As one other poster noted too, the federal government is already deeply involved in directly dealing with marriage--in dozens (probably more like hundreds) of ways. Therefore the federal government needs a position on marriage, and practically speaking, our republic, in order to function, has to have a relatively uniform (as it does now) way to treat marriage. As a Virginian, I do not want Massachussans to come down here filling state and federal courts with nonsense about getting their Mass gay "marriage" licenses recognized.

Lack of DOMA will insure this is what happens.

Mark my words too, our legislators will NOT have the guts to limit the jurisdiction of courts in this instance.

Trust me, limiting court jurisdiction (and hence increasing their own responsibilities--and potential to not be re-elected!) is the very last thing virtually any politician wants to do.

[Qwinn]

"No, like in the case of Mass., the court said the LEGISLATURE had to make the law. No court, has, or can, craft the law itself."

I still disagree. The court's basis for ordering the legislature around like a red-headed stepchild (outrageous in and of itself) was that, supposedly, the Constitution "requires" legal gay marriage due to the 14th Amendment. Now, are you going to tell me that, should that issue be taken up to the Supreme Court, they won't simply enact it on that basis and force every State to comply and overturn every law prohibiting it, just as they did with Roe? Just as they did with last year's Texas decision?

I realize that's not specifically concerning the FF&C clause, but that's besides the point. The Court, if allowed to continue on the road it has been, -will- make gay marriage legal on a Constitutional basis in every State in the country. I have not seen a single decision on their part in the last 30 years to make me believe otherwise.

I thought we were beyond the point that we argued whether or not the courts craft law in this country. We all know they're not supposed to - we should all know that they do it -all- the time -anyway-.

The best suggestion I've heard on this thread that doesn't resort to an Amendment, was to have Congress simply remove jurisdiction of the Courts over all matters pertaining to sexuality. It would overturn Roe, Texas, etc. I would agree that that would be worth a try before going to the Amendment stage.

I notice no one (out of several replies) has responded to my point that the Federal government interacts with married couples directly, without state involvement, all the time, and so -must- come up with it's own position independent of that of the States. This of course assumes we don't stop the whole thing in it's tracks with an Amendment or with the aforementioned idea, but somehow, I'm not all that hopeful.

Qwinn

[Qwinn]

Ah wait, I should note that the suggestion I did like was actually in the article itself - I only noticed it when someone else quoted it, and thought it was written by a poster, not Paul. Okay. On that basis, I agree with the gist of his article - although I still think he is in fact being naive if he thinks a little thing like self-consistency and logic will keep the courts from using the FC&C clause, or worse yet, striking down all laws that bar gay marriage on a Constitutional basis.

But if that jurisdiction were removed, and the Courts actually submitted to that (it -would- be an interesting show if they tried to ignore it), then I agree we'd escape the bullet. However, I'm not counting on it. So if I get a chance to vote on an Amendment, I'm voting Yea.

Qwinn

[WhiteGuy]

Ron Paul Bump.

[mrsmith]

Full Faith and Credit is not the crucial point.
The court has ruled that sodomy is a constitutionally protected 'liberty' under the 14th amendment. It would be unconstitutional to descriminate against another state's recognition of a homosexual marriage.

This new 'constitutional' definition of 'liberty' is under the original jurisdiction of the court and is not subject to limitation by statute, but only by amendment of the Constitution.

Be a whole lot better to just impeach judges who make these outrageous rulings, but that never happens.

[AnalogReigns]

I agree with your points, however I think its incorrect that the Mass Supreme court based its decision on the FEDERAL 14th Ammendment.

If I recall they, in their infinite wisdom, found the "right" of homosexual "marriage" right there in their own 225+ year old state constitution. Imagine how incredibly smart those Mass justices must be to find something everyone has missed for over 200 years!