Tuesday, February 24, 2004

Federal Marriage Amendment II

Old Post: This seems silly, but it is policy. Look below for the previous post on this.

The blogosphere is afire with this topic. There are quite a few libertarian blogs out there who are generally in favor of Bush's policies when it comes to the war on terror, but are quite upset about this. I'm not saying too much before I see the text. I am personally against gay marriage for religious reasons. However, I believe that it is the responsibility of the state legislatures (not the state courts) to define this issue, and if Vermont decides to create gay marriage, fine. The trouble is the full faith and credit clause in the Constitution:

Article IV

Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.


The second sentence should allow Congress to make an exception in the case of marriage, which it has in the Defense of Marriage Act. The problem is that sooner or later the DOMA will come up before the Supreme Court, and it will likely strike it down, if past decisions are any indication. So I can see a need for an Amendment, it's just not clear what it should be. My preference would be to curtail the power of the courts, which I think is the root problem here. As that is apparently too broad for most people, I guess we'll see something addressed to marriage. I might as well offer my suggestion, just in case W drops by this blog:
Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon any couple or group aside from the union of one man and one woman unless explicitly defined otherwise in state law. No state shall be required to recognize the marital status or legal incidents thereof conferred by any other state aside from the union of one man and one woman.

This is adapted from one of the proposed amendments, and makes it clear that gay marriage would have to be explicitly enacted in state law, and no court can say otherwise. This is close to what Ramesh Ponnuru proposes.

New Post: More on gay marriage here.

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