Friday, May 19, 2006
Marriage Amendment
A federal marriage amendment is going to the full Senate for a vote that will occur in early June. Here's hoping it doesn't pass. I think that the definition of marriage ought to be defined by states. Any federal amendment infringes on the rights of states and thus violates the principles of Federalism. Conservatives should work in their own states to pass marriage protection, and not try to ram something through at the federal level.
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So, basically what you think should happen is that there should be 50 or so different definitions of marriage? Well, there would probably be only 4 or 5, but that's still probably too many if you ask me. On this particular topic, I think it would be okay to slightly abrogate states' rights to get a uniform definition. While I agree most of the time on the states' rights issues, I'm not sure that we can allow states to define words - there would be too many definitions and no one would be speaking the same language when they crossed the border (well, they'd be speaking the same language, they just wouldn't be able to understand one another). There would be a lot of forum shopping for states to get married in (not that there isn't now, I suppose), and what happens when you cross the border? Are the states going to be forced to recognize marriages performed in other states? Isn't that running into the same state sovereignty issues as requiring one definition for marriage? Just a few comments.
You make great points regarding uniformity of definition. One question I can answer: no, states will not be forced to recognize the definitions of other states. While I don't have a good answer to the root question you raise, I can say that just because something will be a little messy, doesn't mean one has license to trample on the Constitution. Federalism reins supreme and must be respected. The messy details can be worked out later (although the details need not necessarily be messy).
No offense, but who is to say that we have to trample on the Constitution to have a federal definition? Perhaps there is an argument that it has an effect on interstate commerce - if that is the case, the federal government can regulate it - no harm, no foul. While you raise a very valid point about not shying away from doing something the right way just because it is messy, I think this would probably be a little more than merely messy. If it were just messy, we could just leave whomever to make the definition whatever and work out the details later - I don't like the idea of words changing definition if you change states. Plus, I think that your idea might violate the Constitution in another way - what about the Privileges and Immunities Clause? States would be forced to accept other states' definitions because they would not be able to affect the ability to move, and changing the definition of marriage would certainly do that. A couple could get marriage benefits in one state that they could not get in another state because the second state does not recognize their marriage as a marriage. I think that qualifies as a little more than messy! Incidentally, though, I am not necessarily completely in favor of a federal Constitutional amendment either. :)
I considered the interstate commerce aspect, and if you can explain to me how marriage falls into interstate commerce, then I just might bite. The other points will take a little more time for me to develop.
Thanks.
I don't like the idea of the federal marriage amendment either. This certainly should be something that should remain at the state level. However, what happens if SCOTUS overturns a state's definition of marriage for whatever reason? The court's increasing power in such areas that should remain in the state's control concerns me. I would be interested in what you both would have to say on this. Maybe I'm worried about nothing?
Ronnica,
You raise a very valid point concerning the ever powerful Supreme Court. I would have to defer to my future wife on the precedent that the court has set concerning marriage laws.
I do think that a danger states face is passing laws that would later be overturned by the Supremes. But let's take the eleven (perhaps a few more?)states that already have constitutional amendments defining marriage in traditional terms. Their laws have yet to be challenged by the courts. I'm unaware of any problems concerning recognition of other definitions of marriage by other states. Am I not correct in assuming that Oklahoma does not have to recognize same-sex marriages performed in Massachusetts?
More questions, I think, than answers. But it all comes down to the fact that Federalism has been trampled time and time again and I as a conservative do not want to see the rights of states usurped by this ever powerful federal government (which is why, incidentally, I think the legality of abortion should be left to the states decide).
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