Posted on 03/04/2004 11:38:02 PM PST by JohnHuang2
Let the states decide what 'marriage' is
© 2004 Newspaper Enterprise Assn.
It would help if the two sides in the debate over "gay marriage" could begin by conceding that each has a point. The gay supporters of the concept are not, in most cases, out to scupper the institution of marriage; on the contrary, all they ask is to be allowed to participate in it. And its opponents are not necessarily homophobes; many people, among them not a few homosexuals, believe that marriage, defined as the union of one man and one woman, is one of the indispensable building blocks of a stable social order, and that expanding the definition would seriously undermine the institution.
American society as a whole seems to be moving toward a broad-minded compromise, based on the proposition that two people of the same sex ought to be entitled to proclaim their unity in some official way (perhaps by recognizing "civil unions") that will afford them many of the rights now accorded only to married couples – for example, in tax law. The real question is how to get there from here without changing more than is absolutely necessary.
The problem lies in the "Full faith and credit" clause of the Constitution. Article IV, Section 1 declares that "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state ..." Since the Supreme Judicial Court of Massachusetts recently ruled that two men or two women may get "married" under the constitution of that state, any couple that does so would seem entitled to demand that their "marriage" be recognized in the other 49.
Congress, anticipating this problem several years ago, passed a Defense Of Marriage Act, declaring that no state would be required to recognize such a "marriage" contracted under the laws of another state. And there is a thin hope that this law may have the desired effect, since the federal Constitution's "Full faith and credit" clause goes on to declare that "Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." But any student of today's Supreme Court will concede that it is far more likely that a five-member majority, consisting of the four liberals and Sandra Day O'Wobbly, will simply declare the Defense Of Marriage Act unconstitutional.
That likelihood is what drives the opponents of "gay marriage" to call for a constitutional amendment. Whether it takes the form President Bush has suggested ("defining and protecting marriage as a union of a man and woman as husband and wife ... while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage"), or simply exempts new forms of "marriage" from the "Full faith and credit" clause, it would conclusively bar the courts from ordering that such marriages, contracted in Massachusetts or some other state, must be recognized elsewhere.
That would leave the whole issue of gay marriages where it manifestly belongs: in the hands of the individual states. The genius of our federal system is precisely that it permits different states to come to different conclusions on hotly disputed issues that don't require uniform national treatment. (Abortion would be another such issue, as it was for many years, if the Supreme Court had not rashly decided, in Roe v. Wade, to nationalize it.)
Let no one say that the question is too trivial to be addressed at the constitutional level. If such a profound issue as the very structure of society doesn't deserve such attention, then nothing does. Nor would a constitutional amendment "take away" any existing rights; on the contrary, the Bush proposal would actually encourage legal recognition of previously unrecognized forms of relationships.
Above all, the above-described compromise would avoid weakening the institution of marriage. Gay marriage is not the only, or even the worst, threat to it. Marriage has been under attack ever since the sexual revolution of the 1960s. No-fault divorce and out-of-wedlock births have soared, with devastating effects. If Massachusetts thinks gay marriage will help rather than hurt, so be it. But if other states disagree, they should have that right.
Couldn't agree more.
Only the legislatures, not the courts.
LOL! If you believe the homosexual activities have a point you've missed the real point.
States rights is one issue, but when it involves a license that can cross state lines it's a whole different ball game.
Now it would be perfectly fine if a homosexual couple wanted to pretend they are married in California (for instance), but what happens when they come to another state and demand their licensed "marriage" be recognized as legal?
What will happen is it will end up in the hands of a liberal Supreme Court and take away the rights of the desenting states.
That's why a Consitutional Ammendment is necessary.
I don't understand how "abortion" (determination of when life begins) could possibly be a detail determined by the states when "right to life" is a constitutionally protected right.
Activist judges lie to suit their agenda. Impeach the tyranical judges now. Save the nation.
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