Sunday, October 10, 2004

A Mistake By Both Sides

There was a time in this campaign when it looked like the subject of same-sex marriages was going to be front and center, but then Iraq just swallowed up all the rhetorical oxygen. That said, it's still an important issue. In regards to Herr Klinkner's question below, I'd say that BOTH candidates made a mistake in their positioning on gay marriage. On the Bush side, they made a mistake by supporting the Musgrave amendment, which would basically ban gay marriage in every state, and possibly also many forms of civil unions (or at least get the courts involved in figuring out which ones pass constitutional muster). On the Kerry side, they made the mistake of assuming that the status quo (DOMA) is stable--I'm not sure that it is, esp. in light of the court's recent decision in Lawrence v. Texas.

The right position on gay marriage is to keep federalism in place, which means: a) letting each state decide for itself whether it wants to have gay marriage or some form of civil union, by whatever political process is in place in the states themselves (and all of them have the ability to prevent the courts from getting involved in this by state constitutional means) and; b) making sure that no state is forced to accept gay marriages of another state, if they don't want to, which would effectively allow a single state to make law in this area for the whole country, which also violates federalism principles. I'm increasingly convinced that the only way to do this is to specify in the constitution that the DOMA principles are, in fact, the law of the land. I think a proper reading of our constitutional history makes this the law today, when you combine DOMA and the public policy exception to the full faith and credit law. But I'm not at all sure that the SC won't decide that Lawrence plus Romer doesn't destabilize this position.

So I'm in favor of a constitutional amendment in this area, which would not enshrine any particular position on gay marriage in the constitution (as the Musgrave amendment would), but would make clear the nature of the political process in the area, which is a perfectly legitimate thing to do in a constitution. Michael Greve at AEI has written such an amendment, the text of which is:

(1) The United States Constitution shall not be construed to require the federal government, or any state or territory, to define marriage as anything except the union of one man and one woman.[7](2) The United States Constitution shall not be construed to require any state or territory to give effect to any public act, record, or judicial proceeding respecting a relationship between persons of the same sex that is treated as a marriage under the laws of another state or territory.

The full argument for this can be found in the link above. I'd be interested in what our readers think.

1 comment:

Palooka said...

I completely agree. Have you read the Hatch amendment? It does what you describe but it also removes state judges from the decision as well.

I blogged on this a couple of months ago, please take a l look if you're interested.