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Sunday, June 04, 2006

Moon, June, Spoon, Honeymoon

President has announced that he will put his foot into his mouth again tomorrow.

The President will make a speech on Monday supporting the Constitutional amendment in front of the U.S. Senate to define marriage as a union between a man and a woman. This is not a new opinion for the President – the text of is 2004 White House briefing is

The crux of the President’s argument is this:

The Constitution says that full faith and credit shall be given in each state to the public acts and records and judicial proceedings of every other state. Those who want to change the meaning of marriage will claim that this provision requires all states and cities to recognize same-sex marriages performed anywhere in America. Congress attempted to address this problem in the Defense of Marriage Act, by declaring that no state must accept another state's definition of marriage. My administration will vigorously defend this act of Congress.

Yet there is no assurance that the Defense of Marriage Act will not, itself, be struck down by activist courts. In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage. Furthermore, even if the Defense of Marriage Act is upheld, the law does not protect marriage within any state or city.

For all these reasons, the Defense of Marriage requires a constitional amendment.

In this, the President’s reasoning is simply incorrect. The fact that ay activists cry that homosexual arriage is a constitutional right does not make it so. The fact that notoriously activist Circuits and judges have claimed that it is a constitutional right does not make it o. President linton’s 1998 was the proper solution to the matter. It defined the rights of the states to regulate this matter and indeed that is the proper sphere for such regulation.

It might be helpful to look back to the last such ‘assault’ upon marriage at the beginning of the last century – divorce. To be divorced in New York, a court must be presented with concrete evidence of adultery, the only reason acceptable to break the marriage contract under their laws. As a reaction, the town of Reno in Nevada became a boom town as New Yorkers moved there to establish residence in order to obtain a divorce under Nevada’s more lenient law.

Historically, every state has had differing laws on marriage. The age of consent in Mississippi was 14 – not 21 like most states. Massachusetts required a blood test for Gonorrhea and a three day wait. Maryland, or ‘Marry-Land’, required no wait or residency at all. Now, the age of consent in Georgia is 17 – unless the bride was pregnant in which case, no consent was required at all. Most states allow younger people to marry with parental consent, but some have an absolute barrier to marriage at an early age, parental consent notwithstanding. Wisconsin has a 6 day wait, but requires no blood test, while Oklahoma has no wait but does require a blood test. Louisiana has created Covenant Marriages, which are much more difficult to dissolve. And on and on. Will the Federal government next be embroiled in the 'rights' of 12 year olds to marry? Where will this top-down regulation cease?

By advocating the creation of any Federal marriage amendment, the President is undermining the right of the various states to set their own parameters in this matter, another bit of creeping Federalism. It should be noted that 19 states have already passed laws and constitutional amendments which define marriage as between a man and a woman, indcating that the citizens of these states are able to act for themselves in this matter. While Massachusetts has created the gay marriage, adjoining states like Connecticut have already stated that they do not recognize these unions, as they have created a Civil Union alternative.

Porcupine is a great believer in the idea that even as all politics is local, so should all government be. While the President is entitled to state his support for such an amendment, in his June 2 radio address (link
HERE) he himself said, “45 of the 50 states have either a state constitutional amendment or statute defining marriage as the union of a man and a woman. These amendments and laws express a broad consensus in our country for protecting the institution of marriage”.

If it ain’t broke, then don’t try to fix it. Let the states decide how they want to be governed, which is the best protection of all for conservative principles.


Blogger Mr. Anthrope said...

Tsk tsk. Can I agree with you while disagreeing, or vice versa? I will attempt to do so.
I agree with you that there is no constitutional right to ANY marriage. I am uncertain how I feel about Slick Willy (whom I actually like a lot) signing the DOMA. While I disagree with its intentions, because of that pesky Full Faith and Credit Clause, I think it might have been good to sign to slow down the rampant bigotry that has led us back to trying to pass the proposed amendment. While I agree, in principle, with the (was it?) Brandeis statement that states should act as laboratories in our federal system, I still believe the federal judiciary has to take on the tyranny of the majority when it comes to issues like Civil Rights.
Ultimately, I think your post was dead-on, except for all the parts I disagreed with. :)

8:23 PM  
Anonymous Drew said...

I agree. The states should be the final decision makers in this, and many other issues we have lost a say in. The one thing on which I can find agreement with the President in this is his obvious distaste for activist judges. What virtue is there in a government by the people when it is rendered impotent by such an out of control judiciary?

9:10 PM  
Blogger Publius said...

I think the Supreme Court already made a stab at making this a Constitutional issue in Reynolds v the United States where they eliminated polygamy in Utah and Mormon practice.

There we already have precedent for the SCOTUS saying traditional marriage is the Constitutional standard and it was done on the basis of furthering and assuring equal protection in this democracy!

In that case, it was determined that multiple wives casts the female as a second class citizen and taking away her civil rights. And the entire issue of marriage was deemed a pivotal western and American societal necessity as well as solidly Constitutional.

Anyway, the biggest problem is that we are between a rock and a hard place with this issue. We leave it "to the states" (as I would prefer in the perfect world) and we end up with out of control Federal circuit courts overturning state law despite what the great majority of the people wish to have happen.

This seems to be the only way to chastise this judiciary because Congress hasn't the balls to eliminate circuit courts (which is the only true remedy in the COnstitution to out of control judges).

Where is Thomas Jefferson when you need him?

11:20 PM  

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