Traditional Values Coalition (TVC) Opposed to Marriage Protection Amendment

TVC ^ | 06.01.06 | Rev. Louis P. Sheldon

[EternalVigilance]

Pretty amazing.

Congress already has the power. All it needs is the political will to exercise it.

I still support the amendment, though.

The current crop of liberals in this country, both on the courts and outside them, needs things spelled out for them quite explicitly.

Even that isn't usually enough, but ya gotta try...

[Gelato]

Right. The need today for a federal marriage amendment is analogous to the prior need for the 14th Amendment: to make explicit that which was already implicit in the original Constitution.

Congress historically has exercised the power to define marriage, and has defined it as marriage between a man and a woman. It was only when Utah defined marriage as such in its constitution that it was finally admitted to the Union.

The only thing to debate now is the technical wording of an amendment. That's no small task, given the lessons learned from Supreme Court's twisting of the 14th Amendment all these years.

[EternalVigilance]

Yeah. It'd be so much simpler if we had judges who understood plain American English.

[Gelato]

Yeah. It'd be so much simpler if we had judges who understood plain American English.

No kidding. We certainly wouldn't be in this mess with Massachusetts, now, would we?

Do you think judges these days ever heard of the separation of powers?

[EternalVigilance]

Separation of powers? Hmph. The only separation of powers they seem to understand is them separating the Executive and the Legislative branches from their powers...

[MACVSOG68]

I was referring to the Enabling Act, which made Utah's statehood conditional upon a rejection of polygamy. That is a condition that remains to this day. The state of Utah is expressly prohibited by federal law from allowing the practice polygamy.

Since the Utah constitution contains the "forever banned" phrase in it, I don't think it will likely become an issue. However, if in fact Utah has a republican form of government as guaranteed, the people can modify their constitution as they choose as long as it does not conflict with the US Constitution. I would guess that if they did, the USSC would find that the law under which they were granted statehood gave the US authority to enforce it, as it could with respect to the land and mineral agreements contained in the legislation. As for revoking of statehood, I see nothing in the constitution that permits that by other than an amendment.

This imposition of federal jurisdiction over the definition of marriage is implicit to all states, by the wording of the Enabling Act. Utah is not singled out with a disadvantage here over a power that other states were allowed to possess.

That's quite a stretch. I can see Congress setting forth such legislation in accordance with the interstate commerce clause, but where is the need, since the issue seems covered by the DOMA?

According to the Enabling Act, by agreeing to the conditions of statehood, Utah was brought to "equal footing with the original States." Therefore, Utah is not unique in its lack of power to define marriage. No state has that right.

What federal legislation in that area applies to original states?

[MACVSOG68]

For example, Congress required Arizona to ban polygamy in its constitution when the territory became a state in 1912, and the Arizona Constitution further states that "no future constitutional amendment shall be made which in any manner changes or abrogates this ordinance in whole or in part without the consent of Congress (Arizona Constitution, Article 20, section 13). Mr. McCain, take note: The actions of Congress toward your own state demonstrate that, historically, federalism did not bar Congress from imposing a uniform definition of marriage on the states.

Interesting article. It would be an interesting case if in fact the people of the state decided to remove that statement from their constitution, and then subsequently to modify their laws on polygamy. My guess is that the principles of federalism guarantee them the right to do just that, especially since the original states have no such requirement. As I said in an earlier post, Congressional control over territories is not the same as that control over states. The author is betting against that.

No concept of federalism has ever granted states the authority to define marriage any way they desire. Federalism only grants states the power to regulate marriage already defined as one man and one woman.

The question is what is it that withholds from the states the authority to define marriage, not what grants states that power. Where in federal legislation or the Constitution is a state prevented from what Massachusetts has done? Enabling legislation for a specific state is one thing, and even that arguable, but the author seems to be extending that to all states. I miss his linkage, especially since he is still calling for a constitutional amendment. If states do not have the power to define marriage, why the need for an amendment?