If you want marriage left to the states, you must want an amendment.

[JDPhD]

It seems the typical response from those who want to straddle the fence on the gay marriage issue is to say "Though I personally don't endorse gay marriage, I think it is a matter that should be left to the states--therefore I oppose a constitutional amendment." This may sound like an effective response, but under thoughtful analysis, it breaks down terribly.

The first problem is that what has happened so far regarding this issue has not been a result of action by "states." For a "state" to act, at least in my mind, that action must be undertaken either by "the people" that make up that state--such as through popular referendums--or at least by the properly elected legislature of the state. It cannot be done by a single local official official, or by a handful of activist judges. Under such requirements, the actions of the city of San Francisco--particularly when such actions are in opposition to state law created by popular referendum--do not qualify as "leaving it up to the states." Neither do the actions of the Massachusetts Supreme Court qualify--for it is just 4 judges forcing their will on the people of the state. Finally, in my opinion, not even is the domestic partnership set up in Vermont legitimately an example of "leaving it up to the states"--for the Vermont legislature would probbaly not have created domestic partnerships if the courts had not forced them to do so.

The second problem is that such actions will never stay limited to the states in which they are enacted, due to the activist nature of the judiciary. Instead, you will quickly have judges in Alabama, Utah, Ohio, Louisiana, etc., make use of the U.S. Constitution's Full Faith and Credit clause to force these other states to also recognize gay marriages performed San Francisco, Massachusetts, or elsewhere. Some judges will even inevitably require states to actually begin performing gay marriages--though they don't want to--by applying new, "progressive" interpretations of the U.S. Constitution's Equal Protection Clause. In many cases, these activist decisions won't even be rendered by state courts, but rather by the federal court system. The point is, the courts are never going to allow the matter to actually be left up to the states. So, giving the very activist nature of all American judiciaries, it will be impossible to actually leave the issue up to the states unless some sort of affirmative steps are taken to restrict judges from overriding the will of the people or their legislatures.

With these two problems in mind, at least as things now stand, I think anyone who says "It should be left up to the states, but I don't want an amendment" is spouting B.S., whether they know it or not.

So, I now have a question. Any of you who actually support the idea of leaving this issue up to the states, and who thus oppose Bush's amendment proposal (there has to be at least a few of you out there who have read this far), would you support a different amendment that really would leave the issue up to the states by removing the courts from the process? Perhaps something like this:

"The legislature of each state shall have power to define marriage within its boundaries as solely the legal union between a single man and a single woman, and shall have power to assign and distribute the state benefits of such marriages as it sees fit. And the United State Congress shall have power to similarly define and distribute the benefits of marriage for federal purposes. Such legislation, either from the state legislatures or the Congress, shall not be impinged, altered, or overruled by any judicial action by any court, either state or federal. Nor shall any passage of any statute or constitution, either federal or state, be interpreted by the courts as conflicting with, altering, or overruling the laws passed by the legislatures or Congress under authority granted by this amendment."

I am asking this to try and ferret out whether any of the "leave it up to the states ... but I don't want an amendment" people are sincere. If they are sincere about leaving this issue up to the states, then they must also admit that something must be done to prevent the courts from taking it out of the states' hands. And the only way to do that is by constitutional amendment.

In short, if you really do want to leave the gay marriage issue to the states, you must support a constitutional amendment of some kind (though not necessarily Bush's).

(And here is my boilerplate disclaimer: I have a life. This means I won't be hanging around this thread to respond to every little disagreement. But this does not mean I am abandoning it either. I'll check back in a couple of hours to see if there is anything interesting to respond to.)

[MsUnderstood]

1. Marriage is already a state issue

Marriage IS a state issue now. I think those who say that is what they want are simply adhering to the current status.

I personally say leave it as a state matter because your predicition will come true. If California or Mass grant same sex marriages a challenge will go up in other states to grant rights to those married in those states.

HOWEVER, if the issue is "make it a state issue cause I don't want it in my backyard" then the problem is those people fail to see it as a civil rights issue. History tells us civil rights start in enough states to make a stink big enough to change the country:

Anti Slavery
Women's Suffrage
Civil Rights

And gay marriage will be no different. The attempt to create a devisive, hateful amdendment aimed to discriminate is wrong. People will begin to see the civil rights issue and embrace it as about time or begrudgingly accept it as "oh well".

[JDPhD]

6. So, what you're saying is you are not sincere.

Although you say you want the matter left up to the states--in truth you want it left to the courts.

This is what I thought. "Leave it up to the states" is just a code phrase for letting an activist judiciary do what cannot be accomplished through democratic means. It really has nothing to do with actually leaving the issue to the states.

I personally believe the such profound societal changes should be left to the deliberative processes of democratic politics--not dictated by a few judges who think they are platonic philosopher kings. The only legitimate way to "update' the constitution is via the process outlined in Article V. Any judge who "discovers" new constitutional rights is in fact acting unconstitutionally.

That is our constitutional system. If you don't like it--if you want activist judges--then pass an amendment to legitimately grant them the power to rewrite the laws and the constitution any time they want. To do otherwise is to reject the whole notion of constitutionalism.

In the mean time, please stop pretending that you actually want this matter left to the states.

[Bake]

8. Applying the Full Faith and Credit Clause is NOT being "activist."

It's simply doing what judges are supposed to do. It's surely not making new law, which is by definition what being "activist" is! FF&C was written into the highest law of the land, over 200 years ago.

If you WANT a constitutional amendment, let it be an amendment to a STATE constitution. Marriage has no business being in the U.S. constitution. Otherwise, perhaps an amendment to the federal Civil Rights Act is more in order -- not dealing specifically with marriage, but with non-discrimination on the basis of sexual preference/orientation.

Bake

[JDPhD]

15. Applying it to achieve ends for which it was not intended is activist. nm

[hippiechick]

2. Separation of Church and State

There should be no formal amendment on any level defining 'marriage'.
It is a religious/spiritual concept.

Legal issues of 'partnership', however, should be developed from existing civil rights legislation and not hinge on the gender or orientation of any of the parties involved re: taxes, health care, property, children, estates, etc.

My 2 cents.

:hippie:

[ant]

3. the beauty of a republic...

...is that it doesn't matter what the majority wants.

It doesn't matter if the overwhelming majority of each state votes to deny marriage to gay couples because doing so is discrimination and, therefore, unconstitutional (in spirit of not actual letter).

Slavery was a "state's rights" issue, too, but I think we all know better. State's do not have the "right" to deny a group of people the same rights enjoyed by everyone else.

I realize that what SF is doing violates the absurd little law they passed, but I think it's valid to argue that law is probably unconstitutional (according to CA's constitution, anyway). True, perhaps they should've waited for the case to work its way through the courts, but civil disobedience to fight a very clear and obvious injustice is always welcome, IMO. No one today would argue that Rosa Parks should've just kept quiet, but I'm sure there were many back in the day who urged just that.

This is the sort of stuff true social change is made of, and I, for one, believe it's long overdue. There's no compromise on issues of social justice. Really - would we tolerate separate drinking fountains for minorities? Of course not. This is no different, and history will judge those who oppose gay rights as harshly as it judges those who opposed (or still oppose) civil rights and women's rights.

Progress is inevitable. It's unfortunate people still haven't caught on to that.

[JDPhD]

7. Progress is fine, but it should be done through constitutional means.

You do realize that slavery was ended by passage of a constitutional amendment, not by the decisions of activist courts, don't you?

I don't disagree with progress, but I do disagree with using the courts as a tool to achieve it.

Either you believe in the notion of democracy--majority rule--or you don't. But if you really want to have our country ruled by an oligarchy of judges, than admit it and quit thinking of yourself a democratc (little d). You really don't believe in government "by the people" if you like activist judges--it is that simple.

Look, if your cause is truly just, because we do have protections for things such as a free press, you can eventually convince enough people to change things through the proper, deliberative, democratic processes. You can get an amendment--or perhaps a whole new constitution--to fit your prefered vision of government. The alternative is to say that judges can pretend that laws and the constitution can mean anything they want them to mean. Once we accept that, the laws and the constitution lose all meaning, and we are at the mercy of judicial kings.

If you really like the rule of judges, than you have no right to complain if and when they rule in ways you don't like. If you think judges should be able to overrule the will of the people to make gay marriage a "right", then you must also accept when they overrule the will of the people to pick a president, or perhaps one day to out law abortion, or reinstitute school prayer. Hey, why don't we just cancel all future elections, dissolve Congress and the presidency, and shred all copies of the Constitution, and then judges can just decide everything for us. That's what you prefer, isn't it?

That is the road you are starting down....

[Bake]

9. You are absolutely wrong.

And if you really have both a JD and a PhD you know it. The U.S. is not now and has never been a pure democracy. We have a document, The CONSTITUTION, that prevents the absolute rule of the majority from trampling the rights of the minority. Judges are not now, nor have they ever been, the "oligarchy" that governs us. Judges DO, however, have the responsibility to enforce and interpret the law. Chief Justice Marshall stated, in Marbury v. Madison (surely you know this one, if you have a JD) that it is "emphatically the role of the judiciary to declare WHAT THE LAW IS" (emphasis added). That's not being "activist" as a jurist, that's doing one's JOB as a jurist.

In a pure democracy, 50% plus 1 could determine ANYTHING, regardless of the "rights" of a minority. The Founders were wise enough to avoid this kind of mob rule by requiring 2/3 of the states to ratify any amendment to the Constitution. So, LOTSA LUCK to you, JDPhD, and to pResident Smirk too, trying to get an amendment on this particular issue. It won't get my vote.

Bake, J.D., Esq.

[JDPhD]

13. Marshall was wrong.

Just because John Marshall asserts a power does not mean that the courts legitimately have that power.

Unless you were taught Con Law by a person that likes activist judges, you should realize some basic things.

1. Our Constitution created a limited government. This means, if an entity of the national government was not specifically granted a power within the text of the constitution (or, in the case of Congress, that power is not truly "necessary" to carrying out their granted powers), then the assumption is that the entity does not posses the power in question. All such unenumerated powers were left in the possession of the states and the people.

2. The Constitution does NOT grant the federal courts the power of judical review. Go ahead, read Art. III for yourself--you won't find it in there. They even debated at the Constitutional Convention the possibility of granting the courts the power of judical review--and they chose not to do so. Just because Marshall says the courts get to decide what the Constitution says, it does not follow that they have such a power.

3. Think for a moment about the implications if the courts are the sole arbitors of constitutional meaning. Really think about what can happen if they can read it anyway they want. Suddenly the text loses all meaning. We then might as well just shred every copy of the document. There is no point even reading it. It has become menaingless. To know what the Constitution is, we then have to read court opinions instead. But, you are probably okay with that idea.

4. What if tomorrow the Court read the Constitution as requiring a suspension of elections and the crowning of Bush as dictator for life--would you be okay with that? Would you then say that it is the judges who get to decide what the Constitution says and means? No? Then you don't really believe that the courts are the ultimate Constitutional voice. You just believe in getting the outcome you want--and the process doesn't matter. If the courts are against you, then you will say the will of the people must rule, and if the people are against you, you will say that the courts have the ultimate say. Your position is pure nonsense--but you are right, it is what is generally taught in law schools. Situational ethics. Naked power. Just get what you want, and the rules don't matter.

5. Yes, I do have a PhD and a JD, but I was not brainwashed to accept judges as our platonic kings--like you were.

[jono]

4. Preposterous

If they are sincere about leaving this issue up to the states, then they must also admit that something must be done to prevent the courts from taking it out of the states' hands. And the only way to do that is by constitutional amendment.


Amendment X
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.

http://memory.loc.gov/const/bor.html

edit: that means this is a "state's rights" issue, only as far as the Constitution doesn't already cover it (which it does, under "equal protection").

[Bandit]

5. The constitution is pretty plain

Every citizen will be treated equally. It doesn't say every heterosexual person will be treated equally at least not yet. The Constitution is good just as it stands let's just follow it. When you start throwing around phrases like sanctity you are delving into religion and why should the government go there. Marriage is a legal contract by government terms. It is basically a civil union. Religion gets into the act and starts moralizing over it and the government shouldn't go there. Religions can set any standards they wish but government should remain neutral.

[JDPhD]

11. Yes, it is plain.

If the Equal Protection Clause in fact required that states also perform marriages for same sex couples, then it required that from the moment it was ratified--on July 9th, 1868. If it didn't require such "equal" treatment by states on July 9th, 1868, then it never has--for its text has not been altered since.

So, did the Equal Protection Clause require states to perform same sex weddings? Well if it did, somehow 99.999% of the people who drafted it, who voted for it in Congress, and who voted for it in at least 3/4 of the state legislatures were unaware of this fact. And, somehow, 99.999% of the millions of Americans who lived in the shadow of this passage for over a century were unaware that this basic element of the amendment was being ignored. Such possibilities are absurd. The clear, absolutely plain conclusion is that the Equal Protection Clause did NOT protect gay marriage when it was written, when it was voted on in Congress, or when it was approved by the states. And, logic dictates, if it did not protect gay marriage when written, it cannot possibly protect it now--its text has never been changed!

If you want such "equal" treatment for gays, you are certainly welcome to campaign for your own amendemnt to be added to the Constitution, but don't pretend that such protection is already found there. If a constitutional passage originally protects X, Y, and Z, and you wish to then, later, add W to that list of protections, there is way for doing so that is outlined in the Constitution itself. It is in Article V--you should look it up and read it. It says nothing about getting the courts to change the Constitution for you.

[ant]

17. are you kidding?

That's absurd.

You ARE aware, aren't you, that most gay people, up until very recently, were living in the closet, right? Maybe the reason no one was "aware" of the fact that equal protection includes equal protection for gays is because for most of our history homosexuality has been the love that dares not speak its name.

[lcooksey]

18. Loving vs. Virginia

Just like the Equal Protection clause protected the rights of a man and woman of different races to get married. Except they couldn't in most states in 1948 when California because the first state where activist judges declared their law unconstitutional (under the state constitution). Laws against interracial marriage had been held constitutional in every test before 1948 at both the state and federal level.

It wasn't until 1968 that the US Supreme Court "discovered" a right to interracial marriage in the Constitution. Lots of rights are self-evidently wrong for years until they're suddenly accepted as correct.

[Bridget Burke]

10. No, you're wrong

Leaving it to the states is the way to go. Keep your hands off the constitution.

Also, most of us here "have a life"--doubt you'll be back.

[JDPhD]

16. Actually, I came back much sooner than I thought I would. nm

[Jawja]

12. Didn't Bush*

hide behind "States' rights" on the confederate flag question in South Carolina?

I remember that he did. During the 2000 South Carolina Primary, the confederate flag issue was a full blown controversy there. Bush* was asked about his stand about flying the confederate flag over the Capitol of South Carolina and he brought up the States' rights thing.

Seems now, on the Gay Marriage issue, Bush* doesn't believe in States' rights; and per Tweety tonight, both Edwards and Kerry are "not taking a stand on the issue" by citing States' rights, just as Bush* did in 2000.

[JDPhD]

14. You missed my point.

What is going on here is that the courts won't let the states do what they want. It is inevitable, the courts are going to force every state to recognize gay marriage, eventually.

Thus, if you really do believe that states should determine this issue for themselves, then you must find a way to stop the courts from forcing the states to do things they don't want to do.

The only way to stop the courts is through an amendment. As shown in my original post, ther are ways to restrict the courts while not dictating what states should do.

But I don't think most people who say "leave it to the states" really want it left to the states. They want it left to the courts.

[kher-heb]

19. all marriage should be banned

it discriminates against single people.

[TomNickell]

20. So far, this is in -State- Courts...

And then only Mass. Massachusettes can amend -its- constitutions if it wishes. The SF mayor is acting in violation of California law.

The Federal courts -could- decide to use the Full Faith and Credit clause to force other states to recognize Mass marriages, but more likely they will find some way around that. Or dodge the issue.

So, yeah, its perfectly reasonable to say--'It's a state issue'.

In other posts you sound like a doctrinaire Federalist Society Strict Constructionist. This is a silly doctrine, but I don't have time to argue it right now.