A Weblog of Centrist Voices in American Politics
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A Weblog of Centrist Voices in American Politics | |
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April 21, 2005Federal Marriage Amendment developmentsThe original Federal Marriage Amendment (or if not the original, the one that got the farthest in the process and the one that got the most attention) in the last Congress is replicated in this Congress in Senate Joint Resolution 1. SECTION 1. This article may be cited as the "Marriage Protection Amendment".Beyond the inartful use of the first section, which would make this constitutional amendment the first amendment to have a short title, the second section raises serious federalism concerns because it mandates a construction of state constitutions, which would be binding by way of the Supremacy Clause on state judges as well as federal judges. In other words, this amendment tells state courts what their state constitutions say. (The second section of the original Federal Marriage Amendment also contains a glaring ambiguity, and there is little doubt how the judges whom the social conservatives want on the federal bench would interpret this ambiguity. What are the legal incidents of marriage? Is child custody an incident of marriage? How about cohabitation?) Not surprisingly, I'm not a big fan of the Federal Marriage Amendment. I believe that marriage falls within the traditional scope of the states' police power and is not a proper subject for federal legislation, except for federal purposes (e.g., federal income taxation). I can't speak intelligently about the wisdom of judicial decisions in Hawaii, Vermont, Massachusetts, or California that appear to mandate some form of state recognition of same-sex relationships based on their state constitutions because I don't live in any of those places and I'm not intimately familiar with their state constitutions. On the other hand, I believe that such decisions are properly left to the legislatures of the several states. And they may not get it right even when they think they're being gay-friendly, as I noted here, but at least a legislative process is more competent to deal with the details of such state recognition than a judicial process. That's why some time ago, when I formed the now-defunct Centrist Platform Committee as part of a experiment to define what it is, exactly, that makes a centrist, I proposed my own Federal Marriage Amendment. Marriage in the United States, and in each of the several States, shall be defined as the legislature thereof shall provide, except that no State, nor the United States, shall restrict marriage on the basis of race.Obviously, it didn't get any traction. The members of Congress who have expressed reservations over the original version of the Federal Marriage Amendment have usually limited their reservations to the second sentence of the second section. They say that they would wholeheartedly support the amendment if it just said, "Marriage in the United States shall consist only of the union of a man and a woman." In fact, I'd go along with that as well, begrudgingly, provided the word "marriage" is restricted to "marriage" and not "marriage-substitutes" and the other epithets social conservatives have for civil unions and domestic partnership registries. (There's also a House counterpart, House Joint Resolution 39, which effectively mirrors S. J. Res. 1, but adds a Section 3. ("No State shall be required to give effect to any public act, record, or judicial proceeding of any other State concerning a union between persons of the same sex that is treated as a marriage, or as having the legal incidents of marriage, under the laws of such other State.") This essentially incorporates the Defense of Marriage Act into the Constitution of the United States.) To get around this objection (i.e., that the second sentence of the second section goes too far), Senator Sam Brownback (R-Kans.) creatively introduced Senate Joint Resolution 13--a lucky number for federalists indeed--on April 14, one week ago today. SECTION 1. Marriage in the United States shall consist only of the union of a man and a woman."Ooo," a federalist might coo, "that one should work just fine." But, from a federalist perspective, it's worse than the original Federal Marriage Amendment! The language in the second section isn't new; its use began after the Civil War, beginning with the 13th Amendment, and it reappears in the 14th, 15th, 17th, 19th, 23d, 24th, and 26th Amendments. Why there, and not in all the amendments after the 13th? Because a constitutional grant of power to enforce by appropriate legislation unlocks the door to federal preemption. This is most notably evidenced in civil rights legislation under the 14th Amendment's Equal Protection Clause. Such a grant appended to the Federal Marriage Amendment would allow Congress to regulate marriage directly. It would allow Congress to ban civil unions and domestic partnership registration under the guise of protecting against the "dilution of marriage," which would constitutionally be limited to "one man and one woman." It would also allow Congress, rather than the states, to resolve what the "legal incidents" of marriage are. And, if you favor same-sex marriage and you think the second section gives you hope because Congress could allow same-sex marriage, you're wrong: Congressional action under the second section is limited by the first section, which constitutionally prohibits same-sex marriage. All the second section permits is the dilation and contraction through Congressional oversight of what, if any, non-marriage statuses and rights would be available at either the state or federal levels. In short, S. J. Res. 13 is a Trojan horse. Rather than addressing federalist concerns about preempting "judicial activist" state court interpretation of state constitutions, S. J. Res. 13 would empower Congress to preempt state legislatures from creating "marriage substitutes," as Connecticut just did. This sort of subtlety or, God forbid, nuance, is the sort of thing that lurks beneath the surface of the public policy debate. It can escape the casual reader of the mainstream media, if the media picks up on it at all. Accordingly, the side that defines its message first is the side that typically wins. And, because federalists based their opposition to the original Federal Marriage Amendment on the second sentence of its operative section--a sentence that the Brownback version in S. J. Res. 13 omits--the spotlight needs to be shone on this pernicious little cockroach as soon as possible. Posted by The Jaded JD at April 21, 2005 09:08 PMComments
They should just call this the second class citizen amendment. You know one of the reasons why they won't let gays serve in the military is because military service implies full citizenship. Remember during the Viet Nam war the cry was if you're old enough to die for your country you're old enough to vote. It's not much of a stretch to replace "old" with "gay" and "vote" with "marriage". Posted by: Marcus at April 22, 2005 03:24 AMUgh. I don't even know what to say. Posted by: stephanie at April 22, 2005 09:23 AMJust to be clear, for this to become an amendment, it would have to pass congress and then get ratified by 3/4 or 38 of the 50 states, right? Does it have to pass congress by a supermajority of 2/3 or something, or is a simple majority sufficient? I'm vehemently opposed to this amendment, but I think it has very little shot at ratification. Point well taken that it's ugly enough to oppose from the get-go, though! Posted by: bkk at April 22, 2005 09:52 AMI think it does require 2/3 and then the State Legislatures. It will never pass. What irks the f*ck out of me though, is the fact that the "champions of states rights" are the ones pushing this thru. It's all about states rights, unless your state happens to disagree with James Dobson. Posted by: AH at April 22, 2005 10:10 AMAnother way of looking at this proposal is that since it has such a small chance of being enacted, it is much less damaging than the recent bankruptcy bill, which several Democrats supported. A cynical action, but similar to President Reagan’s support for an amendment prohibiting flag burning. Posted by: ROA at April 22, 2005 12:37 PMROA, Good point. I guess I just hold to the view of Claude Kirk, one of only three Republican Governors of Florida in the last century...his infamous comment was "You just don't f*ck with the Constitution." You can fight your legislative battles all you want, but I just don't like how everyone seems to rush to amend the Constitution so quickly. No, it doesn't get done (Thank God!), but just the fact that there is always this knee jerk reaction to do it bugs the hell out of me. Posted by: AH at April 22, 2005 02:11 PMThis proposed amendment would also seem to be strong evidence gay marriage is currently legal. If it wasn’t, why would Senators, most of who are probably “strict constructionists” clutter up the Constitution with an amendment outlawing something that was already illegal? Posted by: ROA at April 22, 2005 02:27 PMROA, I suspect that the “strict constructionist" arguement for this (and I consider myself in the strict constructionist camp though I don't support the FMA) is that Constitutional Ammendments (Federal or State) are the only effective counter-measure to an activist judiciary. How else is a legislature supposed to see the will of the people enacted if an over-reaching judiciary can simply pretend that the Constitution says something that it doesn't in order to strike down a statute they don't like? It's either Constitutional Ammendments or the Judicial version of the "nuclear option" (Congress may not be able to fire individual judges but it does have it within it's power to disband the Circuts on which they serve and form new offices to cover those jurisdictions. Also remember that the size of the Supreme Court is not fixed in the Constitution - i.e. the FDR gambit). While that option does have a certain visceral appeal..... it's a very dangerous slope to start down. If Congress really wants to see something enacted and the judiciary is being obstructionist.....an Ammendment is the appropriate response..... and given the degree of consensus and support from the populace it takes to actualy get an ammendment passed... if they are able to get one done....it probably means the judiciary was out of sync with the nation. I do find it rather ironic that the proponents of "the living constitution" philosophy so often seem hell bent in preventing the People, through thier elected representitives in Congress, from having any say in shaping said "living document". If the Constitution really is a "living document" meant to change and adapt to the circumstances of the time..... who really is more appropriate in determing the form those adaptations take... an unelected Judiciary or the elected Representatives of the People whom it purports to govern? Personaly, I tend to agree with Gov. Kirk's sentiments, "You just don't f*ck with the Constitution." But when I look at the legal changes that have occured in this country in the past 150 years or so... it's pretty evident to me that it's not the legislature who are the ones doing a majority of the f*cking! Cengel, I might agree with you except in this case the conservatives are using the federal constitution to decide for each state. The gay marriage decisions that have come out are state court decisions. Certainly, if a state legislature thinks that a state court has overstepped its bounds, it can amend its own constitution. There is no reason for Congress to dictate what has always been a state function (regulating marriage) under the pretense of protecting the people from activist judges. The states have plenty of authority to do that. Now, if you have a federal court decision, that would be a different story. I'm offended by so-called small government, states rights advocates deciding that Congress should decide what's best for each state. It's simply shameless. The amendment probably won't pass because even conservatives will realize the hypocrisy involved, but the fact that the idiot Brownback is willing to raise it is simply appalling. Apparently, he is afraid that the people of some states (not his own presumably) might not share his obsession with gay marriage. Posted by: MWS at April 22, 2005 04:37 PMThere is no reason for Congress to dictate what has always been a state function (regulating marriage)...Now, if you have a federal court decision.... Morrill Act, 1862 (Congress) Reynolds vs. the United States, 1879 (USSC affirms the Morrill Act) Edmunds Act, 1882 (Congress) Edmunds-Tucker Act, 1887 (Congress) (upheld by USSC in 1890, I don't have the citation handy) Finally, Congress passed an anti-bigamy provision in 1892 that prevents bigamists from immigrating to the US. It remains part of the U.S. Immigration and Naturalization Code. While these pertain to bigamy/polygamy instead of gay marriage, I'd say they certainly imply the ability of the federal government to regulate marriage. Lawrence v. Texas has called that somewhat into doubt on constitutional grounds. Sooner or later, it's bound to percolate up to the Supremes. It won't be pretty. But yes, the federal government has both precendent and statutory grounds for regulating marriage. Lots of it. Posted by: Tully at April 23, 2005 01:47 PMCengel, I find it amusing that the proponents of the "living Constitution" are also among those who insist that Senate customs are to be considered set in stone, and unchangeable. Posted by: Tully at April 23, 2005 01:50 PMWell, unfortunately, I can't echo Tully this time. The Morrill Act of 1862 (July 2, 1862, ch. 130, 12 Stat. 503), Reynolds v. United States, 98 U.S (8 Otto) 145 (1879), the Edmunds Act (Mar. 22, 1882, 22 Stat. 30), and the Edmunds-Tucker Act (Mar. 3, 1887, ch. 397, 24 Stat. 635) all deal with the Territory of Utah, and not a state at all. Congress has express constitutional authority to "dispose of and make all needful Rules and Regulations respecting" territories of the United States, U.S. Const. art. IV, sec. 3; it does not have that authority over states. Moreover, the Court said in Loving v. Virginia "marriage is a social relation subject to the State’s police power." 388 U.S. 1, 1 (1967) (emphasis added). Immigration regulations do not regulate states; immigration regulations are federal regulations, which Congress has express constitutional authority to enact. U.S. Const. art. I, sec. 8. So, when Congress has acted to regulate marriage in the past, it has not regulated states or preempted state marriage law. It has acted only to the extent Congress regulates federal law (like my example of federal income taxation). The Brownback version of the FMA would change that. Posted by: The Jaded JD at April 23, 2005 06:44 PMI bow to superior knowledge, JD. But I'd say they still confirm the power of the feds to regulate marriage, if only in federal districts and territories (such as DC). Brownback's still an ass, either way, and I think it should be left to the states myself. A federal constitutional amendment is indeed contrary to state's rights (IMHO). Maybe we'll get lucky and get rid of the chump next round. And not by shipping him to the White House. Posted by: Tully at April 23, 2005 07:32 PM |
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