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Interesting twist -- gay marriage as a state's rights issue?(11 posts)

Interesting twist -- gay marriage as a state's rights issue?jtolleson
Aug 21, 2003 2:38 PM
Leave Marriage To the States

By Bob Barr
Thursday, August 21, 2003; Page A23

The political right and left in America share one unfortunate habit. When they don't get their way in courts of law or state legislatures they immediately seek to undercut all opposition by proposing an amendment to the Constitution.

As they say, bad habits die hard. Apparently White House lawyers and the Senate Judiciary Committee are currently examining the merits of a constitutional amendment, pending in the House of Representatives, to deny any and all "legal incidents" of marriage (in layman's terms, any of the hundreds of legal benefits and obligations of the legal institution of marriage) to all unmarried couples, be they homosexual or heterosexual. They should reject this approach out of hand.

When I authored the Defense of Marriage Act, which was passed overwhelmingly by both chambers of Congress and signed into law by President Clinton in 1996, I was under intense pressure from many of my colleagues to have the act prohibit all same-sex marriage. Such an approach, the same one taken by the Federal Marriage Amendment, would have missed the point.

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.

The 1996 act, for purposes of federal benefits, defines "marriage" as a union between a man and a woman, and then allows states to refuse to recognize same-sex marriages performed in other states. As any good federalist should recognize, this law leaves states the appropriate amount of wiggle room to decide their own definitions of marriage or other similar social compacts, free of federal meddling.

Following the Defense of Marriage Act, 37 states prohibit same-sex marriage and refuse to recognize any performed in other states, while a handful of states recognize domestic partnerships, one state authorizes civil unions, and a couple of others may have marriage on the horizon. In the best conservative tradition, each state should make its own decision without federal government interference.

Make no mistake, I do not support same-sex marriages. But I also am a firm believer that the Constitution is no place for forcing social policies on states, especially in this case, where states must have the latitude to do as their citizens see fit.

No less a leftist radical than Vice President Dick Cheney recognized this when he publicly said, "The fact of the matter is we live in a free society, and freedom means freedom for everybody. . . . And I think that means that people should be free to enter into any kind of relationship they want to enter into. It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard. . . . I think different states are likely to come to different conclusions, and that's appropriate. I don't think there should necessarily be a federal policy in this area."

The vice president is right. There shouldn't be a constitutional definition of marriage. As an institution, and as a word, marriage has very specific meanings, which must be left up to states and churches to decide. The federal government can set down a baseline -- already in place with the Defense of Marriage Act -- but states' rights demand that the specific boundaries of marriage, in terms of who can participate in it, be left up to the states.

This also means that no state can impose its view of marriage on any other state. That is the federal law already on the books. I drafted it, and it has never been successfully challenged in court. Why, then, a constitutional amendment?

I worry, as do supporters of the constitutional amendment on marriage, that a nihilistic amorality is holding ever greater sway in the United States, especially among
I see no endlotterypick
Aug 21, 2003 3:15 PM
I can't figure out how, without a moral code of some sort, you can have any laws outlawing virtually any lifestyle or act.

Can't say you value life as the standard, because abortion does't value it nor does euthanasia (which is objective valuation of life based on circumstances and beliefs).

Sure I think we are sliding but there is no logical rational for stopping any lifestyle or act without a moral code.

Assuming we use one any, call the ACLU, who gets to determine it. The UN? All break out in a chorus of Imagine, the humanist theme song.


Imagine there's no heaven, it's easy if you try,
No hell below us, above us only sky,
Imagine all the people, living for today.
Imagine there's no countries, it isn't hard to do,
Nothing to kill or die for, and no religion too,
Imagine all the people, living life in peace.
You may say I'm a dreamer, but I'm not the only one,
I hope someday you'll join us, and the world will be as one.

Imagine no possessions, I wonder if you can,
No need for greed or hunger, a brotherhood of man,
Imagine all the people, sharing all the world.
You may say I'm a dreamer, but I'm not the only one,
I hope someday you'll join us, and the world will live as one

Now that's a religion, humanism. full of imagining and people following it hoping it's true.
glad to provide your soapboxjtolleson
Aug 21, 2003 5:05 PM
and I'm not the arbiter of threads, but what does this have to do with Rep Barr's piece, which I actually thought was kind of interesting?

Been reading LaHaye books, I assume?
A flicker of actual Conservativism from the Rectionary Right?czardonic
Aug 21, 2003 5:13 PM
He's got a principle he's sticking too -- I'll give him that. But ultimately, I think that he is motivated by two things:

  • "Liberal" amendments to the Constitution are far more likely to be adopted -- looking at the history of the Constitution.
  • The repressive and discriminatory agenda of the Right is far more easily accoplished at the State level -- look at how few states currently allow same sex marriage.
    I think his underlying message is that Conservatives should leave off meddling with the Constitution and focus on outlawing same-sex marriage at the State level.
  • sb "Re<i>a</i>ctionary Right". (nm)czardonic
    Aug 21, 2003 5:15 PM
    Not a state or federal issue in my opinionDuane Gran
    Aug 22, 2003 5:22 AM
    I would prefer that the state wasn't involved in sanctioning or endorsing marriage in any form, be it through a legal status or in the tax code. If homosexuals actually represent 10% of the population (a dubious claim I think) then the free market could satisfy their needs. Although a company may choose not to extend benefits to a same sex couple, who would want to alienate 10% of the population?

    Anyhow, I think this would be simpler if the state would choose to endorse no marriages.

    Disclaimer: I'm engaged next year.
    states rightsDougSloan
    Aug 22, 2003 5:40 AM
    I believe generally that decisions should be made on the most local level possible, within the constraints of the Constitution. This issue, it appears, is rising to the level of a Constitutional Amendment potential only because it appears that the Supreme Court may get involved, and the only way to "trump" the Supreme Court is an Amendment.

    I'd prefer, instead, a Constitutional Amendment that says something to the effect of "everyone stay the f* out of everyone else's business."

    A voice of sanity in an insane world...nmBikeViking
    Aug 22, 2003 6:02 AM
    I'll sign on to your amendment. nmOldEdScott
    Aug 22, 2003 6:28 AM
    At last something we can all agree on! * group hug* NMjtolleson
    Aug 22, 2003 6:39 AM
    If you, me, Doug and BikeViking hug on this, IOldEdScott
    Aug 22, 2003 6:46 AM
    want a goddam picture. Next time it happens, Mars will be close to the Earth again.