Good argument against FMA

[Hamlette]

I followed a link from the thread about Stern to this letter on Sullivan's site. As a lawyer I can tell you this guy is on the money. I've not been sleeping either.

<snip>

Now that opponents and proponents of gay marriage are all riled about the FMA its time to talk about the true impact of including a definition of marriage in the Constitution. The potential impact of inclusion of the FMA will effect every American straight or gay because the FMA is not about gay marriage, it is a dangerous Trojan Horse that could completely redefine the powers of the federal government. As an attorney who is researching this issue, let me explain to the best of my ability, why I haven’t been sleeping well since Tuesday.

Under the Constitution of the United States there is no express right to privacy, rather this right to be free from excessive government interference in our personal lives has arisen from Supreme Court precedent that cites the lack of regulation of intimate relationships and the protections of the bill of rights as the basis for an inference of the right to privacy. The right to privacy, according the Supreme Court is found in the penumbras and emanations of these two factors. A shadow of a right, very delicate and now threatened.

By including a provision regulating the most intimate of relationships into the Constitution, the traditional analysis that the court has used to limit government power will be fundamentally changed and the right to privacy, if it is not destroyed completely, will be severely curtailed. As a result, decisions like Roe v. Wade, (Abortion), Griswold v. Connecticut (Birth Control), Lawrence v. Texas (Private Sexual Acts), will all be fair game for re-analysis under this new jurisprudential regime as the Constitutional foundation for those decisions will have been altered. A brilliant strategy really, with one amendment the religious right could wipe out access to birth control, abortion, and even non-procreative sex (as Senator Santorum so eagerly wants to do).

This from Sullivan:

This debate isn’t only about federalism, it’s about the reversal of two hundred years of liberal democracy that respects individuals. So why isn’t anyone talking about this aspect of it?
With luck, this agenda will be revealed as this amendment is discussed and debated. The most important thing to remember is who is behind this amendment: Pat Robertson, Jerry Falwell, Gary Bauer, Robert Bork, Rick Santorum. For them, gays are just the beginning, the soft targets before the real battle. Memo to straights: you're next.
http://www.andrewsullivan.com/index.php?dish_inc=archives/2004_02_22_dish_archive.html#107783629136536853
I didn't need Sullivan to tell me I'm next. Kinda nice to see "normal" republicans finally wake up to discover the religious right nut cases have taken over their party.

(edited to add link)

[TreasonousBastard]

1. I've seen this before, and...

I'm not worried that if the amendment actually starts to get some support (which it doesn't really seem to have) cooler heads will put a stop to it.

This argument will appeal well across the sentient political spectrum, and the religious wingnuts just don't have the numbers or support they think they have when push comes to shove for major changes like this.

Another interesting problem with this, that no one has mentioned, is that there is no real definition of "gender," although there is one for sex.

The Constitution would leave us with the interesting problem of defining just what men and women are. Would the amendment talk of mitochondrial DNA, or X and Y chromosomes? Or maybe just leave it at having the appropriate matching plumbing for reproduction?

If anyone does really push this, which is doubtful, the debate will be very interesting.

[klook]

2. Privacy protections in state law

Thanks for this info, Hamlette. You always have to be thinking 2 moves ahead with these jerks.

Article 1, section 1 of the California state constitution states:
"All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." Source: http://www.privacy.ca.gov/code/declaration.htm

I wonder, would the FMA override such state guarantees (where they exist)?

[TreasonousBastard]

3. Federal Constitutional provisions..

always override state law.

Fortunately, except for Prohibition, Constitutional amendments have overriden the worst of state laws.

Until this one.

But, there is little real interest in this, and even Shrub doesn't seem more interested in it than mentioning for the sake of the wingnuts.

After the initial hysteria, it will go down like the 20,000 or so proposed amendments before it.

They still can't even get a flagburning amendment-- how could they get this through all those state legislatures?