Wednesday, June 23, 2004

Same-Sex Marriage is Ours to Decide

It doesn't matter where you stand personally on same-sex marriage. The opportunity is coming to have the matter decided by the American people through their state legislatures. If missed, the issue will be decided by four justices in Massachusetts. An open and honest debate is necessary - not judicial activism. We need to compel this issue into our hands to decide. The only manner in which to do that is a proposed federal constitution amendment.

The most common argument that the defenders of same-sex unions offer is not one that supports homosexuality. No matter how politically correct it is for Ed to scream his love and devotion to Richard from the rooftops, it is still not accepted by the majority of Americans. So rather than address the issue directly, the argument devolves to claiming that the matter "should be left to the States to decide."

This is an argument preying upon the assumed unfamiliarity of the electorate with the US Constitution. That's a kind way of saying they hope we're stupid or they presume they are smarter than us. Both formulations make the hairs on the nape of my neck stand.

The framers wanted a centralized federal government that had limited powers. So the Constitution established the form of the government, and gave it powers to resolve disputes among the States and to manage the issues of interstate commerce and defense. To keep a lid on an aggressive federal government, the 10th Amendment is quite clear – "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In effect, the federal government has no power to legislate or otherwise control any issue not given to it by the federal constitution.

The word "marriage" does not appear in the federal constitution, so the federal government therefore has no jurisdiction to legislate anything vis-à-vis marriage - gay or otherwise. That power is strictly left to the States. (btw - this explains the lack of an uproar when President Clinton signed the federal Defense of Marriage Act. The activists and Clinton knew that the Act would fall upon the very first challenge, which has not occurred yet.)

Since the issue is left to the States, the question becomes whether one State can act in a manner inconsistent with other States. The answer is "yes," but only within their borders. For example, Pennsylvania can have a drinking age of 21 while another state can have one of 19. No one under 21, regardless of their home state, can drink in Pennsylvania. However, a Pennsylvania resident, aged 19, can go to the other State and drink legally.

However, the issue of conflicting State-to-State laws fundamentally changes when it comes to legal status. Presume for a moment that Pennsylvania increases the age to drive to 18 and that New York maintains an age to drive of 16. If a NYS resident obtains legally a driver’s license at age 16, he or she holds the status of a legal driver and can drive in Pennsylvania even though they are under 18. This is because of Article IV, Section 1, of the Constitution - "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State ..." A law authorizing a driving age of 16 is a "public Act."

By the same logic, many people avoid the waiting periods required for divorces in their home state by traveling to Nevada and getting one at the drive-thru window at McDonalds. They are achieving the status of being divorced via another State's laws.

When it comes to achieving the status of being marriage, the same powers apply. People routinely get married in exotic places out of their home state by traveling to Hawaii, for example.

Additionally, some marriages come with private contracts - prenups, marriage settlement agreements, custody agreements. These must likewise be honored State to State (Article I, Section 10 - "No State shall ... pass any ... Law impairing the Obligation of Contracts."

So, if one State passes a law authorizes same-sex marriage (as Massachusetts did), every other State must honor that marriage. If a "couple" seeks to enforce a contract entered into pursuant to a marriage - a prenup, for example - the Contracts Clause will compel a State to do so, even though that State rejects the underlying marriage.

The Massachusetts Legislature tried to limit the reach of its law. They said, in effect, that only Massachusetts citizens could get married pursuant to it. This may violate the Equal Protection and Due Process (substantive) clauses because as applied it affects only same-sex marriages and not traditional marriages. This portion of the legislation will probably fall at the first challenge.

The next step is for a "couple" that got married in Massachusetts to file for divorce in Ohio, Pennsylvania, or any of the other 38 states that have a prohibition against same-sex marriage. Their petition for divorce will not be heard because Ohio, for example, will claim that they do not recognize the marriage. The denial will be appealed and overturned based upon the Full Faith & Credit and Contracts clauses above. Since the appeal will be grounded in rights found in the federal constitution, the ruling will apply to every State. Thereafter, every State will be compelled to honor same-sex marriages.

Leaving the matter "to the States," then, means that every State must honor the legislative act of Massachusetts that was compelled upon them by four jurists.

There is only one way to handle this issue on a nationwide basis. The question of whether the federal government should to be given limited jurisdiction over marriage should be discussed and decided nationwide. The only manner in which to do that is a proposed federal constitution amendment.

In order to amend the Constitution, the first step is to have 2/3's of the Senate and then 2/3's of the House approve the amendment. It then goes to the States, where 38 State legislatures need to approve it. Since 38 States already have passed a similar measure (amazing coincidence), the activists know that the battle is in the Senate and the House.

I suggest that passage by the Senate and House has nothing to do with an individual member's or constituent's position on the ultimate issue. I have my personal feelings, but (graciously) do not care if you support or oppose same-sex marriage. I think the matter should be decided by the people. We should tell our federal legislators to vote for passage so that the people can decide what to do - all 300 million of us, not four justices in Boston or 177 legislators (34 Senators and 143 Reps - the amount needed to defeat the matter in each chamber) in Washington.

The vote is set for July 12, 2004, in the US Senate. Consider writing your Senator to compel presenting this issue to us to decide.

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