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Against a constitutional amendment banning gay marriage
The Volokh Conspiracy ^ | June 6, 2006 | Dale Carpenter

Posted on 06/01/2006 8:28:01 AM PDT by Sunsong

Today the Cato Institute is publishing a paper I've written on why a federal amendment banning gay marriage is a bad idea, even if you oppose gay marriage. Of course, if you think recognizing same-sex marriages is a good idea, that's a strong reason by itself to oppose an amendment banning them. This paper is written for conservatives and moderates who either oppose or are unsure about same-sex marriage. Here's the executive summary:

Members of Congress have proposed a constitutional amendment preventing states from recognizing same-sex marriages. Proponents of the Federal Marriage Amendment claim that an amendment is needed immediately to prevent same-sex marriages from being forced on the nation. That fear is even more unfounded today than it was in 2004, when Congress last considered the FMA. The better view is that the policy debate on same-sex marriage should proceed in the 50 states . . . .

A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it, on grounds of federalism, confidence that opponents will prevail without an amendment, or a belief that public policy issues should only rarely be determined at the constitutional level.

There are four main arguments against the FMA. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.

Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.

Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.

The paper goes into some detail responding to the common arguments for a federal amendment on this issue, most prominently the facile judicial-activism argument. You can read the whole thing here. While there is a reasonable (though ultimately unpersuasive) argument to be made against gay marriage as a policy matter, the case for a constitutional amendment is very weak. And it is weak for good conservative reasons.

I'll be in Washington on Monday speaking to Cato and the Center for American Progress, as well as to congressional staff, about the proposed amendment. When the schedule is available publicly, I may update this post to let you know more.


TOPICS: Constitution/Conservatism; Culture/Society; Extended News; Government; Miscellaneous; News/Current Events; Unclassified
KEYWORDS: cato; crevolist; fma; gaymarriage; homosexual; homosexualagenda; homosexuals; leftists; liberals; liberaltarians; libertarians; perverts; pervertspervert; quislings; samesexmarriage; traitors; wadlist; warongenesis; wodlist
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1 posted on 06/01/2006 8:28:07 AM PDT by Sunsong
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To: Sunsong

Ah, the Gato Institute chimes in.


2 posted on 06/01/2006 8:32:59 AM PDT by wideawake
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To: Sunsong
The paper goes into some detail responding to the common arguments for a federal amendment on this issue, most prominently the facile judicial-activism argument.

I don't guess it can be construed as an agenda when the author so easily dismisses the "facile" judicial-activism argument. This is just another example of how the perverse among us will try to sell the lie that the cure is worse than the malady in order to ensure the malady spreads to the point where it can't be cured.

3 posted on 06/01/2006 8:37:15 AM PDT by trebb ("I am the way... no one comes to the Father, but by me..." - Jesus in John 14:6 (RSV))
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To: Sunsong
First of all,I don't think that the Federal government can "ban" homosexual "marriage".About all it can do is prevent such "marriages" from being recognized when dealing with the Feds,e.g.,using it to get the marriage deduction on your 1040 or invoking "spousal privilege" in Federal trials.

I suspect that it can also prevent such "couples" from using the "full faith and credit" clause of the Constitution in *forcing* a state to recognize such a "marriage" performed in another state (e.g.,Massachusetts).

4 posted on 06/01/2006 8:38:28 AM PDT by Gay State Conservative
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To: Sunsong

"Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law."

Nonsense.
Lawrence v Texas, Roe v Wade, Griswold, and a host of other Supreme Court rulings got Federal Govt involved in matters 'traditionally reserved for state regulation'.
That opened the Pandora's Box.

Tell me how you will repeal the "unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history" embodied in the Supreme Court's overturning of State laws such as abortion laws, and *then* we can talk about how serious you are about "nation's traditions".


Marriage was defined as between one Man and one Woman in Justinian law in 500AD, and has been the definition of marriage in western civilization and our laws for millenia.
To claim that defending marriage breaks with tradition is pure sophistry.
This essay is just trying to talk people down from standing up for marriage, using arguments that are far more suited for other more serious intrusions into state law. (I'll give just one more example: Federal laws going after deadbeat dads; so much for that "we have federalism in family law" claim.)


5 posted on 06/01/2006 8:38:31 AM PDT by WOSG (Do your duty, be a patriot, support our Troops - VOTE!)
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To: Sunsong

There is no such thing as same-sex marriage.
Marriage from the beginning of time has been defined as the union of a man and a woman.
It is recognised historically and biblically as the foundation of family, society and civilization.
As such it is most appropriate to recognize it in the Constitution of the United States.


6 posted on 06/01/2006 8:40:00 AM PDT by Flora McDonald (got teufelhunden?)
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To: Sunsong
First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.

That is just an opinion without much to back it up. Given what has happened in Mass. and the general attitude of the judiciary towards the will of the people, I disagree with him. Besides, the time to correct a potential problem is before is happens, not after.

Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.

I disagree. I am very much a proponenet of small government and have run for office as a Libertarian. However, if the federal government is going to impose requirements about how states treat each others marriages, then it is not an abuse of power to clarify what marriage is and what it is not.

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.

Yes it is perhaps unprecedented. This is a good thing. For too long the entire country has ignored the fact that the constitution has an amendment process specifically so that it CAN be amended. For a while now, all branches of government have just ignored that and sought change by ignoring the constitution. It will be a good first step if we recognize that the constitution has value and can be amended as it needs to be.

Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.

I don't know, I don't have enough data here. But, I doubt that he is being accurate.

7 posted on 06/01/2006 8:41:12 AM PDT by Rodney King (No, we can't all just get along.)
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To: Sunsong

Everything mentioned in the Constitution automatically becomes a formal part of the institution of the state and part of FedGov. The press and the freedom of assembly are examples. If we want every aspect of our lives to be regulated by FedGov, just amend the Constitution and so it will be.


8 posted on 06/01/2006 8:41:21 AM PDT by RightWhale (Off touch and out of base)
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To: Sunsong

Thanks.


9 posted on 06/01/2006 8:42:21 AM PDT by conserv13
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To: Sunsong

Sometimes Libertarianism borders on Left Wing Liberalism.


10 posted on 06/01/2006 8:43:59 AM PDT by 1Old Pro
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To: Sunsong

Uh-huh. And what happens when a gay "married" couple moves to a state that doesn't recognize their "gay marriage" rights?


11 posted on 06/01/2006 8:44:23 AM PDT by olderwiser
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To: Sunsong; BlackElk
There are four main arguments against the FMA. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.

Uh, tell it to Massachusetts.

Second, . . . There has been no showing that federalism has been unworkable in the area of family law.

Federalism was overruled by the courts in Massachusetts.

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.

Can you say "begging the question"? Getting state recognition of a marriage has nothing more to do with individual rights than getting state recognition of counterfeit currency has to do with property rights.

Fourth, . . . no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.

Of course, ANY proposed Constitutional amendment is by definition "unprecedented." Massachusetts shows it is necessary. 2/3's of CATO's proposals (both good and bad, mostly good, are far more radical than the mere restating that words mean what a real dictionary says they mean). The overly broad departure from our nation's traditions and history occurred when legal positivism took over.
12 posted on 06/01/2006 8:44:26 AM PDT by sittnick (There is no salvation in politics.)
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To: Sunsong
Members of Congress have proposed a constitutional amendment

Image Hosted by ImageShack.us

"Did someone say Constitutional A-Man-Meat? Oh, I am so there. How do I look Miles?"

13 posted on 06/01/2006 8:46:46 AM PDT by WideGlide (That light at the end of the tunnel might be a muzzle flash.)
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To: Sunsong

Because I think this should be a state issue, I'm inclined to oppose an amendment on Homosexual Marriage. However, given issues the "full faith and credit" clause and the extent of judical expansion of "rights" in other areas as well as the specific Massachussetts decision for homosexual marriage, I am also concerned that an amendment may be the only way to ensure that the majority of the people's views will prevail: after all, an amendment is not an easy process.


14 posted on 06/01/2006 8:53:42 AM PDT by CatoRenasci (Ceterum Censeo Arabiam Esse Delendam -- Forsan et haec olim meminisse iuvabit)
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To: Sunsong

20 pages are required. Hmmmm. If something is so simple, why are so many pages required to twist and turn minds into seeing the light?


15 posted on 06/01/2006 8:58:45 AM PDT by Mrs. Darla Ruth Schwerin
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To: olderwiser
And what happens when a gay "married" couple moves to a state that doesn't recognize their "gay marriage" rights?

That depends on what the State law is. What happens when a State-licensed professional moves into a State he/she is not licensed in? Nothing. He/she simply is not licensed, in most cases.

16 posted on 06/01/2006 8:58:55 AM PDT by Lekker 1 (("Stocks have reached what looks like a permanently high plateau" - I. Fisher, Yale Econ Prof, 1929))
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To: trebb

"This is just another example of how the perverse among us will try to sell the lie that the cure is worse than the malady in order to ensure the malady spreads to the point where it can't be cured."

You have a very good way of saying it.

We are seeing that same false argument on illegal immigration. "You can't build a wall" they say, but scratch the surface and you find that its not that the wall *wont* work that they oppose it, they are afraid it *will* work.

What's the fear of settling this issue once and for all?
Some people once thought that slavery was a state's rights issue, and the same arguments hold for that. But the 13th and 14th rightly settled that issue nationally.

The opponents of FMA fear that this issue will be settled nationally once and for all, and the gay marriage drive, which is at the top of the 'gay rights' agenda, will be stopped dead in its tracks. Clearly, if DOMA was sufficient, the drive wouldnt be continuing.

The one real argument against putting energy into FMA as far as I can tell is the political reality that its chances of passage is near nil, due to Democrat opposition. These kinds of op-eds only give cover to that opposition and so make it less likely.


17 posted on 06/01/2006 9:05:52 AM PDT by WOSG (Do your duty, be a patriot, support our Troops - VOTE!)
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To: WOSG
"What's the fear of settling this issue once and for all? "

The same fear that set up America as a confederation of states, each with their own powers, as opposed to a central federal government.

Of course it hasn't been like that in a number years, so is that game we play? Do as the Romans do, assuming we are for it?
18 posted on 06/01/2006 9:15:02 AM PDT by tfecw (It's for the children)
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To: conserv13; Sunsong
Thanks.

NO THANKS!

19 posted on 06/01/2006 9:23:43 AM PDT by DBeers ()
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To: wideawake
Ah, the Cato Institute chimes in.

That's the reason for their existence.

You are free to agree, disagree, discuss or ignore the information and opinions they present.

20 posted on 06/01/2006 9:28:41 AM PDT by Protagoras ("A real decision is measured by the fact that you have taken a new action"... Tony Robbins)
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