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Marriage and the Constitution: Why We Need an Amendment
Meridian Magazine ^ | 22 March 2004 | Richard G. Wilkins (Professor of Law, Brigham Young University)

Posted on 03/23/2004 3:31:35 PM PST by Spiff

Marriage and the Constitution: Why We Need an Amendment

By Professor Richard G. Wilkins

I am one of the few constitutional law professors in the country who actually reads the Constitution. I even read it to my students. I exhort them to study and understand the intent of the Framers of the Constitution. I insist upon a strict construction of the document and praise the brilliant political structure it creates.

If anyone would have told me, ten years ago, that I would support amending the Constitution to include a definition of marriage, I would have laughed out loud. I would have become quite animated in explaining the foolishness of the proposal (I am not known for a calm demeanor on constitutional questions).

Ten years ago, I would have explained that amending the Constitution to define marriage is clearly wrong – for at least three important reasons. First, the Constitution says nothing about marriage; why should that change? Second, marriage is a question the Constitution wisely leaves to the people within their respective states; why change that? Third, and finally, the last thing America needs is more powerful federal courts; why tempt the judges by inserting a new topic into the Constitution?

But that was then. And this is now.

Now, when I hear devotees of the Constitution repeat arguments that are almost a part of my DNA, I shake my head in disbelief. The very concerns that, ten years ago, would have prompted my opposition to a marriage amendment now compel my support.

“The Constitution says nothing about marriage.”

Quite true. But the judges have.

The Supreme Court this past summer in Lawrence v. Texas gave us an entirely “new Constitution” that, for the first time in history, prohibits state legislatures from treating homosexuality any differently than heterosexuality. What does this “new Constitution” do to marriage? The Massachusetts Supreme Judicial Court answered that question: relying on Lawrence, the Massachusetts court has ordered same-sex marriage.

The Constitution now says a lot about marriage. (Just interview the mayor of San Francisco. Why did he issue marriage licenses not authorized by California law? The Constitution demands it, he said.)

“Marriage is a question the Constitution wisely leaves to the people to decide in their respective states.”

Again, quite true. And again the judges have taken that power away.

Does the Massachusetts legislature have any say in who can get married? Indeed, can the legislature even timidly suggest that it give a different name (like “civil union”) to state-recognized unions of homosexual couples? No, say the courts. After all, the Constitution (as construed in Lawrence) forbids states from treating homosexuals any differently than heterosexuals.

The Constitution now takes away the power of the people to decide questions relating to marriage and marital law. (Just ask the Massachusetts legislature.)

“The last thing America needs is more powerful federal courts.”

Yet again, quite true. But by now the judges are laughing.

The United States Supreme Court has demonstrated that it is capable of transcending not only the wording of the Constitution but the history, traditions and actual practices of the American people. Even though the Constitution says nothing about “sexual liberty;” even though the history, traditions and actual practices of the American people do not support an unrestrained “right” for consenting adults to engage in any kind of sex they want; the Court has created this very right out of thin air. Lawrence created this “right,” not by relying upon the wording of the Constitution or the traditions and practices of American society, but by invoking (and I am not making this up) the “meaning of life” and “mysteries of the universe.”

The judges are now so powerful that they feel free to invent the Constitution as they move along. (If the definition of marriage – an understanding as old as time – violates constitutional strictures, one wonders what centuries’ old legal notions the “mysteries of the universe” will invalidate next.)

In light of these astonishing developments, it is absolutely clear why so many people are putting the words “marriage” and “constitution” in the same sentence. An amendment is necessary to preserve not only the social viability of marriage, but the political integrity of the Constitution.

Don’t get me wrong. I fully understand the concerns and arguments of those who assert that the Constitution must not be amended lightly. But just what about the Constitution and marriage is so pristine that it must not be touched? That the Constitution, once upon a time, didn’t say anything about marriage? That the Constitution, once upon a time, left marriage to the states? That some day, and thereafter happily ever after, the judges will once again read the Constitution and tie it to the actual history, traditions and practices of the American people?

Precisely who is taking the Constitution lightly? The judges. And that is why the people must amend it.

An amendment on marriage will go a long way toward restoring constitutional order. An amendment on marriage will not do everything that should be done to instill a proper respect for the Constitution. But it will do at least two vital things. An amendment will restore the crucial understanding that our government operates under a written Constitution. And, by forcibly demonstrating to the judges that they have gone much too far in “interpreting” the Constitution, an amendment will restore the proper balance of power between the judiciary and the representative branches of government.

1. A Constitutional amendment will restore the crucial understanding that American government operates under a written Constitution.

As Chief Justice John Marshall noted in the famous decision of Marbury v. Madison in 1803, America is governed by “a written constitution” and “the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.” (Emphasis by Justice Marshall.) Because the Constitution binds the courts as well as any other branch of government, judges should adhere to the text of the Constitution and interpret and apply its terms consistently with the traditions, history and actual practices of the American people. Any other course, as Chief Justice Marshall noted in Marbury, “would subvert the very foundation of all written constitutions.”

Modern courts have dangerously ignored the teachings of Marbury.

The “new Constitution,” announced by the Supreme Court in Lawrence, frees judges from any need to tie their decisions to either the words of the Constitution or the traditions, history and actual practices of the American people. Many people applaud the idea of a “living Constitution;” a document that transcends words, definitions and the restrictive bonds of history and tradition. But a document as fluid, unfettered and free as the “new Constitution” unveiled in Lawrence bears little resemblance to the Constitution that, for most of its 215-year history, has demanded that the people (and not the courts) resolve society’s controversial moral and social debates.

Under the “new Constitution” announced in Lawrence, the more divisive, difficult and debatable the controversy, the more likely it is that a court – rather than a legislature – will settle the matter. Why? Because (according to the judges, the law professors and other elites) the “meaning of life” and the “mysteries of the universe” become more and more important as social debates become more and more divisive, difficult and debatable.

Of course, this is not the Constitution the Framers intended. It is not what the written text demands. But it is what the courts have now decreed.

We need an amendment on marriage, not only to protect marriage, but to demonstrate to the courts that they exceeded their power in constitutionalizing marriage in the first place.

Modern courts feel free to ignore or alter constitutional text at will. A constitutional amendment on marriage, by forcefully rejecting the judges’ latest excursion from constitutional text and history, will forcibly (and quite properly) remind the judges that their role is to adjudicate, not legislate. A constitutional amendment is necessary to revive the idea which provides “the very foundation of all written constitutions;” that is, that the Constitution is “a rule for the government of courts, as well as of the legislature.” Marbury v. Madison (emphasis in original).

2. A constitutional amendment will restore the proper balance of power between the judiciary and the representative branches of government.

Under the “new Constitution” drafted by the Supreme Court in Lawrence, state legislatures may not “demean” the sexual practices of “consenting adults” that are closely connected to individual views regarding “the meaning of life” and “mysteries of the universe.” (For those of you who either aren’t familiar with legal lingo or simply like people to write clearly: legislatures may not suggest that there are any differences between heterosexuality and homosexuality.) To reach this result, of course, the Supreme Court had to ignore the words of the Constitution and the history and traditions of the American people. In their place, the Justices have given us a poem – a poem as vague, expansive or restrictive as the next metaphor or lyrical couplet favored by five members of the Supreme Court.

This departure from text, history and tradition is a serious matter. It dramatically upsets the proper balance of power between the judiciary and the representative branches of government.

If government action encroaches upon core constitutional values (as contained in clear constitutional text construed in light of actual American practice, experience and tradition) the judiciary must act. But the Founders intended the judicial role to be exceptional and rarely invoked. Alexander Hamilton, writing in The Federalist Papers, proclaimed the judiciary the “least dangerous branch” because it does not create policy but merely exercises “judgment.” The really difficult questions, Hamilton and the other Founders thought, would be left to the people.

Modern social activists (and too many judges) have either forgotten or chosen to ignore that most governmental decisions are not controlled (and can’t be controlled) by the precise language of the Constitution. If the “correct” answers to pressing questions are fairly debatable, those questions must be – indeed, can only be – resolved by legislative action.

The expanding reach of American constitutional law has rendered the public increasingly oblivious to its role as the primary source of decision-making power under the United States Constitution. By inventing and enforcing “rights” nowhere evident in the language of the Constitution or the history and traditions of the American people, lawyers, judges and law professors have slowly eroded democratic decision making, reducing or eliminating the people’s popular control over an ever-expanding range of fairly debatable controversies.

The Constitution was not drafted, nor was it intended, to turn over marriage and marital policy to the federal courts. But, because the courts have now concluded otherwise, a constitutional amendment is needed to restore democratic balance. Without a constitutional amendment, the Supreme Court – and not the people – ultimately will determine what marriage means. With all due respect to the Honorable Court, this is too important a decision to be made by five people in black robes.

What does the Constitution demand?

I end this essay where I began. I do take the Constitution seriously. I look to the intent of the Framers, and I sincerely believe in the political structure created by the Constitution. I wish with all my heart that it was not necessary to even think about putting marriage in the Constitution. I wish that I could rest secure in the knowledge that marriage, like other important topics vital to the health and social welfare of the American republic, was left to the sound judgment of local legislatures supervised by a prudent, careful and principled judiciary.

I fully understand the concerns of those who assert that, since the Constitution has never addressed marriage before, it should not be amended to address marriage now.

But whatever the Constitution said (or did not say) about marriage for the past 215 years, whatever the history, traditions and practices of the American people confirm (or do not confirm) about the meaning of marriage, marriage is in the Constitution. The Founders did not do it. But the courts have.

By placing marriage in the Constitution, the judges have taken marriage out of the hands of the people. The judges have done violence to the very idea of a written Constitution, have eroded legislative power, and have significantly expanded their own power. It is now up to the people, by constitutional amendment, to remedy these errors.

A constitutional amendment is needed, not only to preserve marriage, but to restore constitutional order.


TOPICS: Editorial; News/Current Events
KEYWORDS: civilunion; fma; gayagenda; homosexualagena; marriage; marriageamendment; pervertagenda; queeragenda; samesexmarriage
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Richard Wilkins is a professor of law at Brigham Young University. An internationally recognized expert on legal issues related to marriage and the family, he is also the managing director of BYU’s World Family Policy Center. Professor Wilkins is also the founder of Defend Marriage, (www.defendmarriage.org) a group organized to defend marriage and the family in the political arena.
1 posted on 03/23/2004 3:31:37 PM PST by Spiff
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To: AZBear; AZHSer; hsmomx3; Jeff Head; restornu
Ping
2 posted on 03/23/2004 3:32:28 PM PST by Spiff (Don't believe everything you think.)
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To: Spiff
why can't the queers still be charged with "crime against nature" like they used to be??

If "booty bumpin" was "against nature" 20 years ago, the technique, as i understand it, still has not changed, so why isn't it still against the law??
3 posted on 03/23/2004 3:37:04 PM PST by cajun-jack
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To: Spiff
I would disagree that we would even want and amendment for the above listed reasons and:
1)It will never pass, meanwhile the judging elite continue to make law illegally. 2)Congress has the power by a 50.1% vote to pass a law defining marriage, then remove authority for any federal court, including the supreme court, to have any jurisdiction relating to the law, or even the topic of marriage in general. - that is doable
4 posted on 03/23/2004 3:40:09 PM PST by GrandEagle
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To: Spiff; Travis McGee; 45Auto; Joe Brower
The judges are now so powerful that they feel free to invent the Constitution as they move along. (If the definition of marriage – an understanding as old as time – violates constitutional strictures, one wonders what centuries’ old legal notions the “mysteries of the universe” will invalidate next.)

I'm laying a big wager on the Right to Keep and Bear Arms.

The main difference, though, between eviscerating the concept of marriage and doing the same to people's RKBA is that in the latter there will have to be some kind of mechanism to enforce that decree and actually confiscate property from people. Oh, and BTW, it just so happens that this particular property is uniquely suited to, shall we say, "confounding" just such an effort.

5 posted on 03/23/2004 3:42:16 PM PST by Ancesthntr
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To: GrandEagle
2)Congress has the power by a 50.1% vote to pass a law defining marriage, then remove authority for any federal court, including the supreme court, to have any jurisdiction relating to the law, or even the topic of marriage in general. - that is doable

The exact opposite can and will happen whenever the political winds change. The reason for a Constitutional amendment is to make certain that the law doesn't change so rapidly. A society with no definite laws is an anarchy, and since people inherently don't like to live in such a state, then such a society would be ripe for a dictator or oligarchy.

6 posted on 03/23/2004 3:45:34 PM PST by Ancesthntr
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To: GrandEagle
I like with your 50.1% idea. Here's the problem -

What happens when the Rats get back in power and 50.1 % decide to ban centerfire cartridges and tell judges this decision is outside the court's purview? Could a court step in and declare the edict unconstitutional even though the Congress said the courts cannot review it?
7 posted on 03/23/2004 3:58:28 PM PST by sergeantdave (Gen. Custer wore an Arrowsmith shirt to his last property owner convention.)
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To: cajun-jack
The environmentalists are trying to change it so that instead hetsx is considered a crime against nature as part of their evil plot to promote the extinction of the human species.
8 posted on 03/23/2004 4:00:42 PM PST by beavus (Like all armtwisting, it's the existence of taxes, not just their level, that chafes my hide.)
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To: Ancesthntr
I do understand your point. We are currently ruled by an oligarchy and have been for many years. Congress, the most powerful branch of our Government, refuses to do it's job.
I'll agree that a very good case can be made for the amendment but I am far more fearful for the current ruling oligarchy having any legal basis to have an opinion on marriage. At least what they are doing now is Illegal, and we do have recourse if enough people choose to take it; and that is to require that our congressmen do their job
We should impeach and remove from the bench judges who had expresses their disdain for our Republic by expressing their intent to put us under the jurisdiction of other countries rulings.
We should vote out any congressmen who vote for a law that deals with a subject that "we the people" have not given them authority to legislate on.
This two party system has killed our republic. The point has become having your "side" win instead of what is legal to do by our Constitution.
While time is quickly passing where we will have the capability to regain a Constitutionally functioning government, we still do have the means.
9 posted on 03/23/2004 4:04:13 PM PST by GrandEagle
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To: sergeantdave
(see post #9) I agree, but that is out fault for not requiring that our elected representatives do their job.
Try writing them on a Constitutional issue. You will get a response something like "I understand your concern and appreciate what the Constitution says but I Feel yada yada yada...
Like what they feel over rides the authority and responsibilities that we have given them in the Constitution.
I am far more fearful of a runaway Supreme Court given the ammunition of a statement about marriage.
I have to add here that I believe that we both want to accomplish the same thing here and each are fearful of the others solution.
10 posted on 03/23/2004 4:11:41 PM PST by GrandEagle
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To: Spiff
BTTT
11 posted on 03/23/2004 4:12:57 PM PST by Fiddlstix (This Space Available for Rent or Lease by the Day, Week, or Month. Reasonable Rates. Inquire within.)
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To: sergeantdave
Could a court step in and declare the edict unconstitutional even though the Congress said the courts cannot review it?
No not a Federal court, but a STATE court could declare it unconstitutional and no prohibited federal court could address the issue.
12 posted on 03/23/2004 4:14:41 PM PST by GrandEagle
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To: GrandEagle
then remove authority for any federal court, including the supreme court, to have any jurisdiction relating to the law, or even the topic of marriage in general

Which would just lock in super-power status for state courts.

We need a solution that will restore representative government, and we need a uniform definition of marriage. Federal benefits and taxes rely on the definition of marriage. Also, the SCOTUS has made it a federal issue with their Lawrence decision in which they mentioned marriage, thereby aiding the Massachusett's high court decision mandating gay marriage.

It shouldn't have come to this. It shouldn't be necessary. But it's not our fault. Blame the judges.

13 posted on 03/23/2004 4:20:06 PM PST by King Black Robe (With freedom of religion and speech now abridged, it is time to go after the press.)
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To: sergeantdave
Article III
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;-- between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
14 posted on 03/23/2004 4:22:35 PM PST by GrandEagle
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To: King Black Robe
Which would just lock in super-power status for state courts.
Which is exactly where this kind of stuff should be decided.
15 posted on 03/23/2004 4:24:28 PM PST by GrandEagle
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To: GrandEagle
In the courts? Try the state legislatures. You know, the place where the people's representatives are supposed to make state laws? It isn't supposed to happen in the courts. That's the problem. Your idea would give the state courts even more power to legislate.
16 posted on 03/23/2004 4:28:09 PM PST by King Black Robe (With freedom of religion and speech now abridged, it is time to go after the press.)
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To: King Black Robe
It shouldn't have come to this. It shouldn't be necessary. But it's not our fault. Blame the judges.
I almost completely agree here with the exception that it is our fault for not requiring that our representatives do their job and remove judges who try and make law.
17 posted on 03/23/2004 4:28:18 PM PST by GrandEagle
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To: Spiff
I believe in rule by the majority -- and an amendment is the way to do it. I'd like another amendment to reign in the powers of the corrupt judiciary as well. Perhaps term limits or an IQ test or something.
18 posted on 03/23/2004 4:28:20 PM PST by Naspino (HTTP://NASPINO.COM)
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To: King Black Robe
In the courts? Try the state legislatures. You know, the place where the people's representatives are supposed to make state laws? It isn't supposed to happen in the courts.
Ok, I'll conceed that I mis-stated the State position a bit. The point that I was trying to make is that Marrage has always been a state issue, governed by state laws. Marrages have been declared void, for example, when one state allows 14 year olds to marry and children from one state go to that state and get married, then return home.
19 posted on 03/23/2004 4:31:55 PM PST by GrandEagle
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To: GrandEagle
You're right. Good point.
20 posted on 03/23/2004 4:32:18 PM PST by King Black Robe (With freedom of religion and speech now abridged, it is time to go after the press.)
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To: Naspino
I'd like another amendment to reign in the powers of the corrupt judiciary
The point is that we do have a way to reigh in the judicial branch. WE simply have to make our representatives do their job!
21 posted on 03/23/2004 4:33:50 PM PST by GrandEagle
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To: King Black Robe
Gotta run home. I enjoyed the debate!
22 posted on 03/23/2004 4:35:05 PM PST by GrandEagle
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To: GrandEagle
Yes, but those kinds of questions do not fundamentally change the definition of marriage. And, like it or not, marriage must be defined nationally for tax and benefit purposes.

This article says it better than I:

A Shotgun Amendment (Why We Need An Amendment To The Constitution In Respect To Marriage)
Wall Street Journal ^ | 10 March 2004 | EDWIN MEESE III

Hasty marriage seldom proveth well," Shakespeare warns.

For thousands of years, every society, and every major religious faith, has held that marriage is a unique relationship by which one man and one woman are joined together for the primary purpose of forming and maintaining a family.

Then along came the Supreme Judicial Court of Massachusetts -- following in the footsteps of a trial court judge in Hawaii, a superior court judge in Alaska, and the Vermont Supreme Court -- proclaiming in Goodridge v. Department of Public Health that marriage is "an evolving paradigm." Traditional marriage is out of step with the times, we're told. It's arbitrary, irrational and inherently discriminatory. The institution must be reformulated to accommodate homosexual couples that are legally entitled to marriage under the Massachusetts state constitution.

To make this leap forward, the Massachusetts court seized upon a premise dangled before it by the U.S. Supreme Court in Lawrence v. Texas -- that all individuals have a right to "seek autonomy" in their private relationships, including "personal decisions relating to marriage."

Perhaps this isn't what the Supreme Court intended, but what advocates of same-sex marriage have in mind is clear: to deconstruct marriage, in the name of an invented right, so that it includes and publicly affirms homosexual unions.

In light of such vast claims and harsh language, is it any wonder what is happening? With an air of defiance, from San Francisco to New Paltz, N.Y., and from Sandoval County, N.M., back to Multnomah County, Ore., local officials are actively violating the law in order to catch the perceived wave of social progress sweeping the nation.

Should Americans, renowned for their live-and-let-live spirit, care?

We ought to be disturbed when judges circumvent the lawmaking process and assume the powers of legislating. We also should be troubled by the ease with which these judges are willing to discard clear laws and legislative intent because it fails their perception of rationality. Constitutional government is threatened when judges alter the definition of things and reinterpret duly approved laws in order to achieve their own policy preferences.

But even worse than the way the courts are making these decisions is the substance of what they are dictating. Think about what's at stake. The basic unit of society is the family, but the cornerstone of the family is marriage. The essence of marriage is the union of man and woman as husband and wife. This unique association provides social, economic and health benefits for children and adults. It brings significant stability, continuity and meaning to society, transferring basic cultural knowledge and civilization to future generations.

To redefine marriage so that it is not intrinsically related to the relationship between fathers, mothers and children undermines the institution by separating it from its very nature and purpose. President Bush put it this way: "Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society."

There is "an overwhelming consensus in our country," as President Bush observed, that marriage is between a man and a woman. If opinion polls are any guide, most Americans understand that this is not just a shouting match over living arrangements.

But do we need to amend the Constitution? One's first reaction is to hesitate. No state formally has legalized homosexual marriage, and, as a result, there is no case that threatens to force the issue on other states or the nation. There is as yet no challenge to the federal Defense of Marriage Act of 1996. These battles lie ahead, and each will be important.

Legal certainty, however, is not the standard of political judgment. The Defense of Marriage Act might stand constitutional scrutiny -- but it might not. Regardless, it does not protect the nation from state judges like those in Massachusetts who insist on same-sex marriage by misconstruing their state constitutions. Nor does it address the legal anarchy that now abounds. A constitutional amendment is the only sure and democratic way to stop activist judges from imposing their will on the people.

But do we need to define marriage in the Constitution, making national what has always been the province of the states? Again, the first instinct is to say no.

In our system of law, the powers of government are divided between the federal and state governments. The framers rightly left marriage policy -- as so many other things -- with the states.

Yet this is not a matter for state-by-state experimentation. Society isn't harmed when high-tax states live side by side with low-tax states. The market adjusts to the inconsistency. Not so with marriage. A highly integrated society such as ours -- with questions of property ownership, tax and economic liability, and inheritance and child custody crossing state lines -- requires a uniform definition of marriage.

In a free society, certain fundamental questions must be addressed and settled for the good of that society. States can't impair the obligation of contracts, or coin their own money, or experiment with forms of non-republican government. We learned the hard way that the nation could not endure half slave and half free.

If marriage is a fundamental social institution, then it's fundamental for all of society. As such, it is not only reasonable but obligatory that it be preferred and defended in the law -- and, if necessary, protected in the U. S. Constitution.

This doesn't mean that marriage must be completely nationalized or should become the regulatory responsibility of the federal government. Policy decisions concerning questions such as degrees of consanguinity, the age of consent and the rules of divorce should remain with the states.

But we must protect the integrity of the institution as such by defining the societal boundaries and determining the limits beyond which no part of society can go.

A constitutional amendment that defines marriage would protect the states' capacity to regulate marriage by sustaining it as an institution. In order to guard the states' liberty to determine marriage policy in accord with the principles of federalism, society as a whole must prevent the institution itself from being redefined out of existence or abolished altogether.

Let's not fool ourselves: it is extremely difficult to amend the Constitution. The framers, in their wisdom, made it hard -- precisely to assure that any changes were important enough to have broad-based support among the American people and in the states.

The question comes down to this: Is marriage sufficiently important to protect in the U.S. Constitution?

If the correct answer to this question is yes, then we should take that fact, and not political expediency, as our principled starting point.

The very consideration of an amendment that focuses on marriage would be an important vehicle for a nationwide debate about the nature, purpose and legal status of the institution of marriage. States are already strengthening their laws, passing state defense of marriage acts and considering state constitutional amendments -- all of which should be encouraged. A meaningful national conversation about an amendment to defend marriage will further this process and become the centerpiece of a larger and longer-term effort to promote and strengthen marriage and the family.

The defenders of marriage did not choose this debate or force this issue on the nation. Americans are a wonderfully tolerant and very reasonable people. But the issue having been joined, and the decision having been forced, we must now act on our basic principles and deepest convictions -- to preserve constitutional government and protect marriage.

Mr. Meese, a former U.S. attorney general, is chairman of the Center for Legal and Judicial Studies at the Heritage Foundation. He was assisted in writing this piece by Matthew Spalding, director of Heritage's B. Kenneth Simon Center for American Studies.

23 posted on 03/23/2004 4:38:46 PM PST by King Black Robe (With freedom of religion and speech now abridged, it is time to go after the press.)
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To: GrandEagle
I meant you're right on your post 17. My reply to your post 19 is my post 23. LOL! I should have copied your points. Sorry about that.
24 posted on 03/23/2004 4:41:44 PM PST by King Black Robe (With freedom of religion and speech now abridged, it is time to go after the press.)
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To: Spiff
No, we do not need a Constitutional Amendment defining marriage.

We need strong conservative leadership to reverse the socialist practices of government that awards entitlements and benefits based on marital status.

If these stipends for marriage stop, the same sex marriage issue will stop too.

Do not listen to Constitutional liberals, fiscal liberals, political liberals, or social liberals that say they are trying to protect marriage. They are trying to protect socialism.

True conservatives would choose to abandon the socialist policies that gave this issue legs.
25 posted on 03/23/2004 4:57:41 PM PST by backtothestreets
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To: Spiff
I never cease to be amazed by the hypocrisy of the LDS Church and many of its members on this subject. The church which insisted on its members' right to practice polygamy, in defiance of the mainstream traditional moral beliefs of the country at that time, and which suffered a shameful invasion of its community by federal troops over the practice, now wants to codify into law government discrimination against anyone who doesn't conform to its idea of proper marriage.

Fortunately, there is strong evidence that the younger generation of Mormons sees the hypocrisy and isn't buying into it, as evidenced by a number of recent letters to editor of the BYU student newspaper (similar to the positions taken by the Baylor student newspaper editor, and letter writers, who also clearly see the need for distinction between one's own religious beliefs, and what one should advocate having codified into law). The best of the BYU letters dug up a quote from an early LDS Church publication, the Millennial Star, in which the then President/Prophet of the Church railed against the evils of monogamous marriage:

MORMONS HAD WEIRD MARRIAGE CUSTOMS TOO

http://www.newsnet.byu.edu/story.cfm/49110

I found it interesting to see a recent author resorted to accusing Jennie Hyde of being under the influence of Satan for her seemingly reasonable position regarding same-sex marriage in the recent letters to the editor on gay marriage. As Jennie correctly points out, as Mormons we are in no position to attack unconventional marriages when our early leaders themselves had no qualms about engaging in marriage practices that the culture of that time found distasteful.

The religious rhetoric used to justify banning same-sex marriages is eerily familiar to statements from 19th century church leaders, who likewise blamed the downfall of earlier civilizations on marriage practices. Then, however, it was not same-sex unions that were blamed but heterosexual monogamy!

President John Taylor stated that "the one-wife system not only degenerates the human family both physically and intellectually, but it is entirely incompatible with philosophical notions of immortality; it is a lure to temptation and has always proved a curse to a people" (Millennial Star, Vol. 15, p.227). Brigham Young and Orson Pratt expressed similar sentiments.

The author fails to provide a reasonable explanation of how the sanctity of heterosexual relationships is threatened by same-sex marriages. Her justification that it presents a bad example for our children is not adequate. By similar reasoning, one could argue that we as a church should push for legislation that outlaws coffee, NFL football games on the Sabbath, and Bay Watch!

As a community, I feel that it would behoove us to show a little more introspection, tolerance, and compassion.

Dean Leavitt

Alpine

26 posted on 03/23/2004 5:15:40 PM PST by GovernmentShrinker
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To: Spiff
While I sympathize with this professor's position, to amend the constitution under these circumstances is to give legitimicy to wholly illegitimate adjudication.

Impeachment, nullification, interposition, and the use of Article III, Sec. 2 of the Constitution all need to be considered.

The marriage amendment should not be necessary. These actions by SF's mayor and the Massachutsetts judiciary are lawless and unconstitutional. We simply cannot amend the constitution every time the left decides to disregard it. We need to hold these officials accountable through impeachment, recall, nullification, interposition and arrest where necessary.

I am so seek of this endless deference to judicial tyranny.

When oh when will some elected executive officer in some state or federal capacity, in fulfilling his constitutional duty to honestly interpet the constitution (federal or state) just disregard the unconstitutional rulings of any court and dare the legislature to impeach him for it? When will some legislature impeach just ONE judge for an unconstitutional ruling?

To say that the courts have the final word on the constitutionality of a law NO MATTER WHAT THEY RULE is to say that the system of checks and balances envisioned by the founders does not exist any more.

Alan Keyes gave the best summation of this issue that I've heard yet. He said that every branch of government has a duty to honestly interpret the constitution. If the president honestly feels the courts make an unconstitutional and lawless ruling, then the president should disregard that ruling and refuse to enforce the provisions that he felt were blatantly unconstitutional. If the Congress felt the president was wrong in this decision, then it was their duty to impeach him for it. If the electorate felt that the Congress was wrong for impeaching the president or the failure to impeach him, they can remove them at the next election, as well as the president for any presidential actions that they considered wrongful.

Lest anyone consider this formula has a recipe for chaos, then I submit to you there is no chaos worse than an unchecked oligarchic Judiciary. We are not living under the rule of law when judges make law up to suit their whims has they engage in objective based adjudication.
27 posted on 03/23/2004 5:16:50 PM PST by DMZFrank
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To: backtothestreets
Exactly. And government should get 100% OUT of the marriage business. No free person needs a license from the government to set up a household.
28 posted on 03/23/2004 5:19:19 PM PST by GovernmentShrinker
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To: Spiff
The Full Faith and Credit Clause has never been used to force a state to accept a marriage that it did not want to accept.

This amendment is not needed.
29 posted on 03/23/2004 5:21:47 PM PST by BikerNYC
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To: cajun-jack
why can't the queers still be charged with "crime against nature" like they used to be??

Can't say I approve of black men marrying white women as well.

30 posted on 03/23/2004 5:26:06 PM PST by Doe Eyes
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To: Spiff
"The judges have done violence to the very idea of a written Constitution, have eroded legislative power, and have significantly expanded their own power. It is now up to the people, by constitutional amendment or, by other means,if necessary, to remedy these errors."

We can do it the easy way, or the hard way - the courts have set in motion the possibility of the greatest period of civil unrest since the first Civil War; if not held in check, the next such disturbance will be catastrophic. The point of this article is well put: either the Constitution and NOT the courts means something solid and substantial, or we will make our own rules as we go along; and you can bet the farm that things are going to get very messy, indeed, in that process. People are only going to take so much BS and then, BOOM!.

31 posted on 03/23/2004 5:29:26 PM PST by 45Auto (Big holes are (almost) always better.)
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To: BikerNYC
Homosexual marriage will be ordained by SCOTUS through the equal protection clause of the 14th Amendment, not FFC.

A marriage amendment is necessary to the preservation of marriage.

32 posted on 03/23/2004 5:31:38 PM PST by jwalsh07 (We're bringing it on John but you can't handle the truth!)
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To: jwalsh07
Why don't you wait to see if that ever happens, instead of messing with the Constitution and adding an amendment which is bound to go the way of the 18th sooner or later.
33 posted on 03/23/2004 5:34:28 PM PST by BikerNYC
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To: GovernmentShrinker
The author fails to provide a reasonable explanation of how the sanctity of heterosexual relationships is threatened by same-sex marriages. Her justification that it presents a bad example for our children is not adequate.

It may not be adequate to you or the author but it is more than adequate for a large majority of America.

By similar reasoning, one could argue that we as a church should push for legislation that outlaws coffee, NFL football games on the Sabbath, and Bay Watch!

Not worth commenting on.

As a community, I feel that it would behoove us to show a little more introspection, tolerance, and compassion.

As a nation we have shown introspection, tolerance and compassions. We draw the line at worshipping sodomy and having unelected courts demand we encourage defects in behavior or birth.

34 posted on 03/23/2004 5:35:20 PM PST by jwalsh07 (We're bringing it on John but you can't handle the truth!)
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To: BikerNYC
Why don't you wait to see if that ever happens, instead of messing with the Constitution and adding an amendment which is bound to go the way of the 18th sooner or later.

For the same reason I don't wait until the horse is out of the barn to close the gate. I didn't start the battle Biker but I sure the heck ain't backing down from it.

35 posted on 03/23/2004 5:37:27 PM PST by jwalsh07 (We're bringing it on John but you can't handle the truth!)
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To: BikerNYC
Good point. Do you know of any case law on this? The only two case-types that I can think of that would have been possible to date are 1) interracial marriage, when that was still illegal in some states, and 2) marriages involving one or more parties who were underage in a state they were living in, but whose marriage had been legal under the marriage-age laws of the state where they were married (still a lot of state law differences there, to this day).
36 posted on 03/23/2004 5:38:40 PM PST by GovernmentShrinker
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To: GovernmentShrinker
Longstanding precedent from around the country holds that a state need not recognize a marriage entered into in another state with different marriage laws if those laws are contrary to strongly held local public policy. The "public policy doctrine," almost as old as this country's legal system, has been applied to foreign marriages between first cousins, persons too recently divorced, persons of different races, and persons under the age of consent. The granting of a marriage license has always been treated differently than a court award, which is indeed entitled to full interstate recognition. Court judgments are entitled to full faith and credit but historically very little interstate recognition has been given to licenses.

For example, a state need not recognize an individual's license to practice law in another state.
37 posted on 03/23/2004 5:44:57 PM PST by BikerNYC
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To: jwalsh07
Not even Bob Barr, author of the Federal DOMA, and twice divorced himself, wants a constitutional amendment.

Barr calls the proposed amendment "unnecessary and needlessly intrusive and punitive." He insists that the definition of marriage is a state responsibility and argues that the federal government has no business interfering with state's rights in the matter.

Being an expert in marriage himself, he should know.
38 posted on 03/23/2004 5:48:22 PM PST by BikerNYC
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To: backtothestreets
True conservatives would choose to abandon the socialist policies that gave this issue legs.

Do not kid yourself, the gays and liberals do not want same sex marriage for economic benefit. They want moral equality and nothing less. The economic benefits are a smokescreen, and they drew you in, just like the lawyers want to draw the Judges in. The attack on our system is relentless, and because of the apathy of most voters, a Constitutional Amendment is the only alternative.

39 posted on 03/23/2004 5:48:34 PM PST by woodyinscc
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To: Ancesthntr
We've come a long way in the last 100 years, a long way away from original intent. The issue of the 2nd Amendment is to a large degree already determined and "in the bag" as far as the courts, the legislature and the executive branch are concerned. They have succesfully transformed what was an unfettered RIGHT to keep and bear arms to the PERMISSION to keep and bear arms.

The Brady Boob is right about one thing: no court has ever overturned a gun law based on the 2nd Amendment, and its unlikely that one ever will. The last ten years has demonstrated that in spades. Even relatively good rulings have still upheld the laws in question. That certainly is true for Emerson, and it sure as hell was true for Silviera. In the latter, the damn 9th Circuit actually said, in dicta, that there is NO individual right to keep and bear.

The legal building blocks are already in place; all it will take is for the Congress or one state legislature to declare all gun ownership illegal and order a mass turn-in. The level of compliance will be interesting; states like California have a complete database of pistol sales since 1989; in addition, there are around 30,000 registered "assault weapons" in another database. It would be expensive to pay enough people (even local law enforcement) to go around and collect all these arms. Its a good bet that the 4th and 5th Amendments would have to be suspended for such an event to take place. That would put the likes of the anti-gun ACLU in a difficult postion - one full of irony.

40 posted on 03/23/2004 5:49:56 PM PST by 45Auto (Big holes are (almost) always better.)
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To: Spiff
What good would it do to amend a document that the courts and legislatures alike ignore?
41 posted on 03/23/2004 5:51:21 PM PST by 45Auto (Big holes are (almost) always better.)
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To: BikerNYC
Barr is wrong. While Bob has his good points, deep thinking is not one of them.

Marriage is a national issue. If, like me, one supports marriage as an institution between a man and a woman, then I, albeit reluctantly and after much thought, am forced to support and campaign for the FMA.

SCOTUS will not allow married homosexuals in Massachusetts to be treated differently than civil union homosexuals in Georgia where federal largesse or duties are concerned. Nor should they if they are faithful to the Constitution as written. It is quite clear.

Equal protection under the law.

42 posted on 03/23/2004 5:55:41 PM PST by jwalsh07 (We're bringing it on John but you can't handle the truth!)
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To: 45Auto
What good would it do to amend a document that the courts and legislatures alike ignore?

They do not ignore the plain language, they see language that doesn't exist. It's a penumbra thing.

Ignoring plain language is grounds for impeachment, waxing poetically about "transcendent liberty" is not.

43 posted on 03/23/2004 6:00:45 PM PST by jwalsh07 (We're bringing it on John but you can't handle the truth!)
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To: jwalsh07
Equal protection under the law.

Indeed.

Marriage is also supposed to be "till death do we part," but I don't see all us straight people calling for the end of divorce. Indeed, the Catholic Church does not recognize civil divorce and prohibits those who are divorced from marrying in their churches. Why shouldn't we adopt that position?

I find it incredibly hypocritical to focus on the FMA, when marriage is crumbling (if, in fact, it is) not because of gay marriages, but because of divorce and people like Britney Spears walking down the isle at the drop of a pin. She single-handedly did more damage to the institution of marriage then all of the gay people who have been married to date.

Marriage is an institution that is entered into and existed from at will. To claim that such an institution needs federal protection is preposterous, since the requirements to enter into it are just about nil.

The author of DOMA, Mr. Barr, has been married three times. The President who signed DOMA into law...well...we all know what kind of poster boy for the sanctity of marriage he is. The moral of this story is...

Those who live in glass houses whould not throw stones.
44 posted on 03/23/2004 6:09:04 PM PST by BikerNYC
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To: BikerNYC
I don't find your argument a persuasive one. The same folks who opposed liberalization of divorce law also oppose homosexual marriage. We are consistent.

We now know that no fault was bad public policy resulting in more government to substitute for one of the parents. Redefining marriage is again bad public policy and the evidence in Scandanavia suggests rather strongly a further erosion of the institution of marriage and rising levels of out of wedlock births resulting in even more government.

So justifying more bad public policy based on bad public policy is not a persuasive argument nor does it say anything about the institution of marriage. It says much about bad public policy.

45 posted on 03/23/2004 6:18:22 PM PST by jwalsh07 (We're bringing it on John but you can't handle the truth!)
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To: jwalsh07
But I don't see you or the people who think like you calling for the abolition of divorce, or even calling to make it harder to obtain by even the smallest amount.

You call no fault divorce bad policy, but seek to do nothing about it. That paints the picture of someone who really doesn't care about the true causes of a problem, but is only looking for a sound-bite solution.

Proposals to consider:

Marriage may not be entered into until 6 months (I can be convinced it should be 9 or 12 months) following the obtaining of a license. (Britney Spears, you are out of here.)

Divorce will not be permitted except after a waiting period of 18 months.

A person may not get married again until 5 years after a previous divorce is finalized.

When these kind of proposals are considered, I will then do more than laugh at those calling for a FMA to prohibit the marriage of a very tiny percentage of the population.
46 posted on 03/23/2004 6:27:53 PM PST by BikerNYC
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To: BikerNYC
When these kind of proposals are considered, I will then do more than laugh at those calling for a FMA to prohibit the marriage of a very tiny percentage of the population.

Again, your argument is simply that bad public policy justifies bad public policy. It is not an argument for redefining the word marriage.

You also mistake defeat for acquiesence. We lost the battle on no fault (bigger government won), the culture war continues.

As for your suggestions, sounds like a plan to me.

And as for your laughs, it is the same attitude I encountered many years ago when arguing that Roe and Doe would be a license to kill. That battle continues as well.

47 posted on 03/23/2004 6:38:31 PM PST by jwalsh07 (We're bringing it on John but you can't handle the truth!)
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To: jwalsh07
Marriage has been redefined innumerable times over the centuries, as has almost every other social institution.

Religious institutions can keep whatever definition of marriage they would like. They need perform no marriage which they find to be against their policies.
48 posted on 03/23/2004 6:46:13 PM PST by BikerNYC
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To: BikerNYC
Forget religion. I'm religious but I don't argue from that view point because it doesn't persuade the non-religious.

I am arguing from the view point of limited government.

I'd be happy to argue objective truth and morality if you'd like.

Marriage for all 228 years of this Republic has been defined as a man and a woman. Utah was not allowed into the union until they banned polygamy. In other words, the history of the law in the US is that one man, one woman equals marriage.

If you want to change that definition then you must present at a minimum, a preponerance of the evidence suggesting it enahnces the Republic and the institution of marriage.

49 posted on 03/23/2004 6:51:23 PM PST by jwalsh07 (We're bringing it on John but you can't handle the truth!)
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To: woodyinscc
"They want moral equality and nothing less."

In a word... BULL!

This IS about homosexual couples receiving the same benefits MARRIED heterosexual couples receive.  If it were otherwise, this would have been an issue when the "marriage tax" penalty was still in force.

Get the government, at all levels OUT OF MARRIAGE.

 

 

50 posted on 03/23/2004 6:55:06 PM PST by backtothestreets
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