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July 13, 2004
Conservatives and the Federal Marriage Amendment
Opponents of the Federal Marriage Amendment tell us that it is an issue that should be left to the states to decide. Five conservative stalwarts took out a full-page ad in today's Washington Times to speak out against the amendment. One of them, Bob Barr, says:
"Marriage is a quintessential state issue. The Defense of Marriage Act goes as far as is necessary in codifying the federal legal status and parameters of marriage. A constitutional amendment is both unnecessary and needlessly intrusive and punitive."
And when the Supreme Court finds that gay marriage is a "right", and forces it upon states like they did with abortion, what will you say then?
The entire reason that an amendment is being put forward is that the courts are so out of control.
George Will even goes so far as to say that we should allow the states to experiment with gay marriage:
"And it would be especially imprudent to end state responsibility for marriage law at a moment when we require evidence of the sort that can be generated by allowing the states to be laboratories of social policy."
States as laboratories? Not where I live, buddy. And when the "experiment" does not work out, do you think that states will be able to go back and make it illegal? That they'll just say "oops, sorry" and easily go back to how things were? This is not a serious argument. Believe you me, the left will not give up a hard-won victory.
There are several reasons wrong with leaving the issue to the states. In fact, Senator John Cornyn says that this argument "borders on the fraudulent. There is nothing that a state can do to fully protect itself against federal courts hostile to its laws except a federal constitutional amendment."
As Senarot Cornyn indicates, the issue would not be decided in it's proper forum, the state legislatures. As we have already seen, the Massachusetts State Supreme Court has ruled that gay marriage is required. That we have an out-of-control judiciary abrogating powers to itself that it does not have is a problem that can only be solved by constitutional amendment. No doubt the US Supreme Court would feel compelled to rule on the issue, and given it's direction in recent years it would probably rule in favor of gay "marriage."
Another problem with the "states rights" argument is the "full faith and credit" clause of the US Constitution. Article VI Section 1 "requires each state to recognize a judgment entered in another state" (1)This probably means that if one state made gay marriage legal, and the couple moved to another state, that state would have to recognize the marriage. I say "probably" because this issue would no doubt go to the courts.
Liberals love to chide conservatives on this issue. The claim that we are violating our own principle of federalism, sometimes called "states rights." But this would be a caricature on their part. Conservatives have never said that all issues are for the states to decide. Further, when the courts have superseded their assigned powers, a constitutional amendment is the only way to protect states rights.
Pass the amendment.
Posted by Tom at July 13, 2004 9:30 PM
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