First, in the interest of full disclosure, for those that have not read the "About Me" page, I am gay. But my displeasure with the Amendment is not based even mostly on that.
Second, I note that, while many talk about The Federal Marriage Amendment, there are, proposed in Congress, at least 3 amendments pertaining to the marriage issue. In the 108th Congress, there were 4 such amendment proposals. So talking about the FMA is silly. However, for purposes of this short discussion I will take as the amendment, the one proposed in the Senate by Wayne Allard, which has received a good deal of the public attention. It reads:
`SECTION 1. This article may be cited as the 'Marriage Protection Amendment'.
`SECTION 2. Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.'
Now, my great displeasure with this wording stems primarily from the fact that it flagrantly turns its back on even the basic pretense of federalism and opts instead to dictate to the states what is and is not allowable. I cannot abide that.
Read on for my thoughts, and for my own proposed FMA............
The Definition of Marriage
In this respect I do dislike this amendment based on my sexual orientation. I dislike the idea of writing into the Constitution, a definition of marriage. It sets bad precedent - why not start amending the Constitution any time we feel we don't like what one state might do with an institution we prefer. Why not require that the only acceptable form of state government is a bicameral legislature, or that all states must have lieutenant governors? The amendment provides a hard and fast rule that would be virtually impossible to reverse - we would effectively decree that so long as 13 states want to keep that definition, that would be the definition (since we'd need a new amendment to repeal it, and amendments require the ratification of 38 states - so 13 states refusing to ratify the repeal would cause it to fail).
But more disquieting to me is the effect this would have on the traditional state prerogative to define marriage. Because the Constitution is the supreme law of the land, this amendment would prohibit and prevent even the people of a state, through their duly elected state legislators, to change the definition of marriage. It sets the definition of marriage for all states for all time, without any ability of the elected representatives of the people to change that. Only Prohibition so grossly trampled a traditionally state-regulated issue, and Prohibition was such a colossal failure that it was repealed only 14 years later. The Constitution should not be used in this way.
I can understand the idea behind the clause. Some in Congress worry that the federal definition of marriage as contained in the Defense of Marriage Act will be declared unconstitutional as beyond the power of Congress (for my part, I think it is unconstitutional - Congress has no power to define marriage - though an argument can be made under the Spending Power). The way to fix this problem, though, is to grant Congress the power it seeks, not to impose the will of even the many on those who do not wish it.
Clause 1 of the Amendment should read: "Congress shall have the power to define marriage for federal purposes." The amendment should not allow Congress to override the will of state legislatures or the people who elect them. I actually am not comfortable giving Congress the power to define marriage even for federal purposes (how soon before Congress then wades into disallowing marriages between cousins - still permitted in many places, including New York - because some people don't approve), but I can see the desire. The benefit here is to allow a majority in Congress to set the definition they choose (and would validate the Defense of Marriage Act), but also allows for the definition to change, if the people wish to have it changed, simply by electing members of Congress who will define it differently - allowing democracy to work without having to attempt the amendment process all over again.
The Judicial Prohibitions
The Amendment also goes overboard in its attempt to neutralize judges. I have no problem with a clause that would clarify that the U.S. Constitution cannot be read to require the recognition of same-sex unions. What I do have a problem with is the federal Constitution seeking to limit the rights that states, through their own constitutions and courts, are permitted to grant their citizens. Never before has a state been prohibited from granting greater rights to its citizens than the federal government. States should be left to deal with their own judges and constitutions on their own.
The clause, which would prohibit a court from construing a state constitution to require recognition of same-sex unions, also presents novel constitutional issues. What should happen if a state, say New York, amended its Constitution to expressly protect same-sex unions and to expressly provide for same-sex marriage? Again, it would seem that a court construing that provision to require a county clerk to issue a marriage license to two men would be violating the federal Constitution, which prohibits construing any constitution to require such recognition.
Again, I believe I see the reason behind this. Activist judges have been the ruination of democracy, especially in same-sex marriage disputes. The experience of Massachusetts has sent many into a panic. They worry that judges will force unwilling states to recognize marriages performed in Massachusetts (or Canada now) when they are opposed. However, yet again, the cure goes beyond the problem. The second worry, is that the 14th Amendment will be read to require such recognition on a national basis.
First, the Full Faith and Credit Clause has never required one state to recognize a marriage performed in another state. New York itself will not recognize a marriage that is contrary to the "strong public policy of the state." Nobody has seemingly raised issue with that. Further, the Full Faith and Credit Clause permits Congress to create rules and regulations concerning the recognition of legal judgments. That grant of power would seemingly validate that portion of the Defense of Marriage Act that allows individual states to refuse recognition to same-sex couples married in other states.
The second fear is perhaps valid. But again, the solution is to restrict the limitations of the Amendment to the federal powers and federal courts. States are co-equal (less so now than in the past) sovereigns. If they feel that their judges have gone beyond their roles and powers it is up to the citizens of that state to rein them in (and last year 13 states passed marriage amendments to do just that). To let the federal government so restrict them is tyranny, plain and simple. Again, I take an example - this time Massachusetts. The proposed FMA could be passed by Congress with all 8 Massachusetts Representatives and both U.S. Senators voting "no" - it could then be ratified even with Massachusetts refusing to do so (as in voting against the amendment) - yet once ratified, it would be as binding on Massachusetts as on others. Massachusetts would be restricted in the implementation and interpretation of its own state constitution without its consent. I see no better definition of tyranny than that.
The Right Language for the FMA
Here, I provide for consumption, my own idea for a Federal Marriage Amendment that does not trample the rights of the states, or the people, to democratically and electively respond to the concerns of their citizens.
Section 1: Congress shall have the power to define what constitutes a valid marriage, solely for federal purposes.
Section 2: Nothing in this Constitution shall be construed as requiring the federal government, or any state, to recognize the marriage of two persons of the same sex; nor shall it be construed to require that one state recognize marriages between two persons of the same sex performed in any other state.
Section 3: Nothing in this Article shall abrogate the right of any state, or the people thereof, to alter or amend the state constitution to allow marriages of two persons of the same sex; nor shall this Article be construed to prohibit the duly elected Legislature of any state from voluntarily providing by statute for the recognition of marriages between two persons of the same sex.
I personally believe that this verbiage would adequately respond to the concerns being expressed by many who oppose same-sex marriage, while preserving the states and the federal character of the country. Republicans and conservatives are supposed to believe in the power of the states. Ronald Reagan brought us the idea of the New Federalism. Just because we are in power in Washington does not mean we should abandon that laudable principle simply because it meets our temporary desires. To do so is simply to give the opposition ammunition later on - I would not want to see Democrats and liberals running around amending the constitution in order to ensconce liberal ideas against the state legislatures and the people they represent. I am therefore reticent to see the Right do it now.
I would hope that those who seek to move this issue forward will take notice that their methods may be more than is called for. Something more temperate, yet still formidable enough to provide the protections they seek, will be far more likely to succeed, both in Congress and in the court of public opinion. And how many more Democrats could be bludgeoned for opposing it come Nov. 2006? Senators Conrad, Byrd, Stabenow, Nelson (FL) and Nelson (NE) would certainly be hard-pressed to defend themselves in states that are fairly to very conservative on this issue, especially when the language used in the amendment would seem to leave the states and Congress both with considerable latitude in the continued debate on the issue.