2003 November 24 Monday
Modest Proposal For Constitutional Amendment On Marriage

The gay marriage debate has reached a pretty high intensity as a result of a recent Massachusetts Supreme Judicial Court ruling striking down the existing definition of marriage as being only available to create legal unions between people of opposite sexes.

The Massachusetts Supreme Judicial Court ruled Tuesday that same-sex couples are legally entitled to wed under the state constitution thereby striking down a state ban on same-sex marriages. The court said the state was violating its own state constitution by denying the "legal, financial and social benefits of marriage" to people of the same sex who wish to marry.

The whole gay marriage debate is not something I want to get into on the ParaPundit blog. I have views about the subject. But so many commentators cover the topic and I try to cover topics that do not get the attention that they deserve. However, there is one thought about this subject that I haven't heard anywhere else that I thought I'd toss it out. A recent discussion The Corner blog on National Review Online was kicking around David Brooks' recent NY Times column in favor of gay marriage. See comments by Tim Graham, Tim Robinson, and Jonah Goldberg for examples. Ramesh Ponnuru examines the debate on the right about the Federal Marriage Amendment proposal to amend the US Constitution to limit the definition of marriage as a union between a man and a woman.

The constitutional amendment debate so far has been about whether and to what extent to change the constitution with an amendment to regulate marriage and other forms of unions between people. The fear on the Right among opponents of gay marriage is that if one state holds that gay marriage is legal then all other states could be compelled by a federal court ruling to respect that state's gay marriages because of a constitutional clause requiring that states respect each other's laws. An attempt to prevent this was made by Congress in 1996 and signed into law: The federal Defense of Marriage Act, passed to define marriage as only between a man and a woman, could be ruled unconstitutional based on a clause related to federalism and the relation between the states.

"One could argue the law is unconstitutional," said Les Babich, a family lawyer in Des Moines. "It's highly improbable that would be successful."

Under the U.S. Constitution, states must give "full faith and credit" to other states" laws, unless it violates public policy.

Effectively, such an outcome could allow a single state's Supreme Court and the federal Supreme Court to make gay marriage legal in all states and that would be rather undemocratic. By contrast, it has been argued that a constitutional amendment to restrict marriage to a union between a man and a woman would be more democratic due to the requirement of approval of a constitutional amendment by so many state legislatures and Congress. But there is another way the gay marriage debate could be handled that might have greater appeal for people who are committed federalists and who are not keen to see the courts decide such an important issue: Have a constitutional amendment that explicitly authorizes each state legislature to define the eligibility for civil unions and marriages in each state. Effectively take the "full faith and credit" justification away from the federal courts on the question and truly make marriage a state-level issue so that no single state's court combined with a federal court can determine the law of all the states.

A criticism often heard on the Right is that courts are arrogating to themselves authority to decide issues that ought to be the province of legislatures. In my view there is considerable merit to this criticism of the courts. But an amendment to the constitution that effectively bans gay marriage looks like it makes the opposite mistake: such an amendment looks too much like legislation written into the constitution. So then why not simply amend the constitution to tell the courts that they do not, by any stretch of the imagination, have the authority to play legislators on the question of who is eligible to be married? Such an amendment would not be for or against gay marriage. It would just force the issue to be resolved in a democratic fashion.

One obvious question about this proposal is whether it makes sense to empower the individual state legislatures to settle this issue in different ways. Settlement of property law issues could become quite complicated if, say, a couple could be married and joint owners of property in one state, they split up, and one of them moves to another state before a legal divorce is granted. If this is really serious problem (I know little about property law and have no idea) then another variation on an amendment would be to either authorize Congress to decide the gay marriage issue for all the states or for some sort of division of powers between the state and the federal legislatures on this issue to be made as part of the amendment.

Share |      By Randall Parker at 2003 November 24 10:49 PM  Politics American Domestic


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