Skip to comments.Alternative to marriage amendment offered
Posted on 07/17/2004 3:28:54 PM PDT by wagglebee
After failure of the Federal Marriage Amendment in the Senate, a congressman has proposed passing a federal law defining marriage as between a man and a woman.
Rep. Ernest Istook, R.-Okla., wants a law that would over-ride all state laws, granting the U.S. Supreme Court original jurisdiction over any legal challenge against it, reports Human Events online.
That means any challenge would bypass all lower courts and go straight to the high court.
The Senate Wednesday effectively killed the first attempt at an amendment by rejecting a move by Majority Leader Bill Frist of Tennesee to end debate and vote on it. Republicans garnered 48 votes in favor of cloture, far short of the 60 needed.
To pass, Istook's proposal would need only a congressional majority and presidential signature, while a constitutional amendment requires a two-thirds majority from both chambers and ratification by three-fourths of the states.
The idea likely will spark federalist objections, Human Events says, but it would remove the defense of Sen. John Kerry and other Democrats who say they oppose same-sex marriage but don't support changing the Constitution.
The law would expedite a ruling on same-sex marriage by the Supreme Court. If the high court were to rule in favor of same-sex marriage, Human Events notes, the case for a constitutional amendment would be greatly strengthened.
The only problem with this is that it will only work if Bush is re-elected and has the opportunity to appoint two new justices (three if Rehnquist retires) that are prepared to defend the Constitution from the unending assault from the left.
The fed's should stay out it.
With the Texas Sodomy Ruling (LAWRENCE V. TEXAS), the feds are already in it.
Wanting the feds to stay out of it now is sticking our heads in the sand. There are enough footsoldiers of Satan around without adding to their number from our side.
Mass. made it a federal issue. Even if the other 49 pass iron clad amendments, Full Faith and Equal Protection WILL trump them. Federal Trumps State.
It is a federal issue.
It is no different that the Lawrence decision undid anti-sodomy laws in states that had no participation in the case.
Not seeking a federal solution to this federal issue is only acting like an ostrich. Even this solution posted here will not have the desired effect.
Federally Marriage must be one man and one woman. Otherwise you expose tax, immigration, and social security among others to the imposition of forced acceptance by order of judge.
As well it damned well should! This "Republican" Istook is obviously planning to repeal the 10th Ammendment while he's at it. I don't even need to say the kind of precedent this would set! Feds: stay out of this!
"The fed's should stay out it."
You're just a little late and you can't turn back the clock.
The upwardly definitive federal court system from trial court through the appellate process works just fine. It ain't broke so there's nothing to "fix."
I'm sure you're right, but I still want the fed's out of a lot things which they are presently involved with. I certainly don't want them in any deeper, and that is where they always seem to go. Both Democrats and Republicans.
"The fed's should stay out it."
Impossible because of the Full Faith and Credit clause.
And, if the Regress wanted to sweeten the pot, it could write into the bill that SCOTUS has original jurisdication over this Act and over the broad issue in general (Article III, Section 2, Clause 2).
This canard of using Lawrence v. Texas is a bogus argument. The gov't had no justifiable interest in what goes on consentually in an adult's bedroom.
Marriage licensing *does* have legitimate gov't interest when it comes to legal rights at times of separation or an estate.
You *really* don't want to open the pandora's box of bringing the Feds into this. Full faith & credit would only sensibly extend to upholding the legitimate civil contract from another state. It would not mean anything in terms of requiring the state which had banned issuing such things itself. We already exist in a nation with non-uniform marriage licensing (age, relationship, fault or no-fault divorce, community property or not, etc.) so why would anything need to change?
Of course, this one is dead in the water too.
That means any challenge would bypass all lower courts and go straight to the high court.
Why is this left to the appointed loons of the lower courts in the first place??
I am neither in favor of circumventing the will of the people through their legislators in lieu of being at the mercy the quirky Black-Robed Nine.
Not impossible. If you have a medical license in one state, but don't meet the requirements of a neighboring state, that state doesn't have to allow you to practice medicine when you go there.
The Court in Lawrence Only applied a much more limited Rational basis test (They claimed that Texas had no Rational Basis for sodomy laws.) Under a Rational basis test the Only thing the Government has to prove is that An important Governmental Objective is being served.
Justice Scalia Recognized that Lawrence Never Declared Sodomy to be a fundamental Right in his dissent in Lawrence V Texas: "Most of the rest of todays opinion has no relevance to its actual holdingthat the Texas statute furthers no legitimate state interest which can justify its application to petitioners under rational-basis review. Ante, at 18 (overruling Bowers to the extent it sustained Georgias anti-sodomy statute under the rational-basis test). [b]Though there is discussion of fundamental proposition[s], ante, at 4, and fundamental decisions, ibid. nowhere does the Courts opinion declare that homosexual sodomy is a fundamental right under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a fundamental right.[/b] Thus, while overruling the outcome of Bowers, the Court leaves [b]strangely untouched[/b] its central legal conclusion: [R]espondent would have us announce a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. 478 U.S., at 191. Instead the Court simply describes petitioners conduct as an exercise of their libertywhich it undoubtedly isand proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 3."
In order for something to be found a "Fundamental Right" and therefore be subject to a much higher standard of review (Strict Scrutiny) it must be "Some principle so rooted in the traditions and conscience of the people as to be ranked as fundamental." Snyder V Commonwealth of Massachusetts, 291 US 97 (1934).
This standard was upheld more recently in Reno V Flores 507 US 292 (1993) where again the court ruled that a Fundamental Right must be considered "So rooted in the traditions and conscience of our people as to be ranked as fundamental."
And Most Recently in Washington v. Glucksberg. 521 US 702 (1997) "The Court's established method of substantive due process analysis has two primary features: First, the Court has regularly observed that the Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition. E.g., Moore v. East Cleveland, 431 U.S. 494, 503 (plurality opinion). Second, the Court has required a "careful description" of the asserted fundamental liberty interest. E.g., Reno v. Flores, 507 U.S. 292, 302. The Ninth Circuit's and respondents' various descriptions of the interest here at stake--e.g., a right to "determin[e] the time and manner of one's death," the "right to die," a "liberty to choose how to die," a right to "control of one's final days," "the right to choose a humane, dignified death," and "the liberty to shape death"--run counter to that second requirement. Since the Washington statute prohibits "aid[ing] another person to attempt suicide," the question before the Court is more properly characterized as whether the "liberty" specially protected by the Clause includes a right to commit suicide which itself includes a right to assistance in doing so. This asserted right has no place in our Nation's traditions, given the country's consistent, almost universal, and continuing rejection of the right, even for terminally ill, mentally competent adults. To hold for respondents, the Court would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. Respondents' contention that the asserted interest is consistent with this Court's substantive due process cases, if not with this Nation's history and practice, is unpersuasive. The constitutionally protected right to refuse lifesaving hydration and nutrition that was discussed in Cruzan, supra, at 279, was not simply deduced from abstract concepts of personal autonomy, but was instead grounded in the Nation's history and traditions, given the common law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment. And although Casey recognized that many of the rights and liberties protected by the Due Process Clause sound in personal autonomy, 505 U. S., at 852, it does not follow that any and all important, intimate, and personal decisions are so protected, see San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33-34. Casey did not suggest otherwise. Pp. 15-24."
The Homosexual activists cannot argue that Homosexual marriage is deeply rooted in the traditions and conscience of the American people.
In fact even in cases where the Homosexual Activists have had activist judges rule a right to marriage under a state constitution the courts still ruled that Homosexual Marriage was not a fundamental right. In Baehr V Lewin (The marriage case before the Hawaii Supreme Court.) The majority found: "we do not believe that a right to same-sex marriage is so rooted in the traditions and collective conscience of our people that failure to recognize it would violate the fundamental principles of liberty and justice that lie at the base of all our civil and political institutions. Neither do we believe that a right to same-sex marriage is implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it were sacrificed. Accordingly, we hold that the applicant couples do not have a fundamental constitutional right to same-sex marriage arising out of the right to privacy or otherwise."
Remember this is the pro-sodomite judges speaking above. Even they did not have the nerve to rule sodomite marriage a fundamental right.
So with a Fundamental Right argument dead in the water, the Homosexual Activists must retreat the the full faith and credit clause option.
I believe that here as well the Homosexual Activists do not have a leg to stand on. The Full Faith and Credit clause of the Constitution does not mandate that one state accept the laws of another, in addition it specifically gives Congress the Authority to provide for implementation of the Clause. (Congress has done so with the 1996 Defense of Marriage Act.)
The Supreme Court has ruled in two cases on the extent of the Full Faith and Credit Clause. The first Pacific Employers Ins Co V Industrial Accident Commission of California 306 US 493 (1939) The Court ruled : "we think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events."
The court restated this principle in Sun Oil CO V Wortman 486 US 717 (1988) where it stated "The Full Faith and Credit Clause does not compel a state to substitute the statutes of another state for its own statutes dealing with a subject matter concerning which it is competent to legislate."
Now keep in mind the above is only applicable if judges are not going to legislate from the bench and are going to follow to legal principle of stare decisis. The United States Supreme Court, The MA Supreme Judicial Court and The 9th Circus for example have demonstrated time and time again that they are not willing to act within the bounds that the Founding Fathers intended for them, but instead they want to act as social engineers and black robed kings of the nation.
That is the real reason the Constitutional Amendment is needed. Not because the sodomites have a legal case, but because Activist Judges are not willing to abide by settled law.
Mr. Istook is one of the finest representatives we have in Washington.
He is a fine conservative man, and he most definitely is a Republican.
The court specifically said they overrulled Bowers.
It is all fine as long as an amendment stops homosexuals.