Why it has come to amending the Constitution
President Bush today endorsed amending the US Constitution to define marriage as the union of a man and a woman.

In recent months, however, some activist judges and local officials have made an aggressive attempt to redefine marriage. In Massachusetts, four judges on the highest court have indicated they will order the issuance of marriage licenses to applicants of the same gender in May of this year. In San Francisco, city officials have issued thousands of marriage licenses to people of the same gender, contrary to the California family code. That code, which clearly defines marriage as the union of a man and a woman, was approved overwhelmingly by the voters of California. A county in New Mexico has also issued marriage licenses to applicants of the same gender. And unless action is taken, we can expect more arbitrary court decisions, more litigation, more defiance of the law by local officials, all of which adds to uncertainty.

After more than two centuries of American jurisprudence, and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity.

On a matter of such importance, the voice of the people must be heard. Activist courts have left the people with one recourse. ...

I instinctively shy away from amending the Constitution on this issue for much the same reason that I oppose the proposals to amend to forbid protest-burning of the American flag: that's not what the Constitution is for. The Constitution was written to set forth the form and nature of the government and by its first 10 amendments guarantee that certain rights should never be abridged.

An amendment to define marriage Constitutionally is not "structural" in nature. So it does not seem to me to be Constitution-related business.

Except.

Except that the "full faith and credit" (FFC) clause of the Constitution's Article IV, Section 1 makes this issue a Constitutional one:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. ...

In the context of marriage, this clause has always meant that a couple married in, say, Michigan, who then moved to Tennessee, would not have to get a new marriage license from Tennessee. And that's the rub when it comes to homosexual "marriages."

What the FFC clause does, so pundits say at least, is this: compel legal recognition by all states of same-sex marriages done in San Francisco or Massachusetts. In effect, the Constitution would be used as the instrument to force a nationwide redefinition of the most fundamental way society is ordered, and it basically does so by fiat, by the whim of five judges in Massachusett's supreme court and of the mayor of a California city. Why, pray tell, should those persons have such enormous power over the people of Tennessee, or any other state?

In fact, the Congress agreed in 1996 that they shouldn't and passed the Defense of Marriage Act, which permitted states to decide on their own whether they would honor same-sex marriage licenses issued in other states. This act has been neither invoked by states nor challenged in court. The act's sponsors say that the Congress has the authority under the FFC clause, which in addition to the sentence quoted above, also says,

And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

In a calmer time, DOMA would be pretty much the end of it until a same-sex couple sued a state for failing to give full faith and credit to their union licensed in another state. I assume that federal rather than state court would have original jurisdiction because of the interstate character of the issue.

But these are not calm times. This issue became rapidly polarized to its extreme positions because of the scofflaw actions of San Francisco's Mayor Newsom and the provocative judicial overreach of the Mass. supreme court.

In legislative terms, the issue is settled at the federal level. DOMA is still on the books. But when President Bush denounced "activist judges" in his statement today, he was speaking for millions of Americans (we'll see whether a majority) who believe, as I do, that the very nature and character of the judiciary today far surpasses what the country's founders intended or envisioned, and hence traditional means of settling Constitutional questions have been abrogated. What else, they think, can they do but go to the source?

Yet there will be no quick resolution of this matter. Same-sex-marriage activists and proponents shut the electorate out of the decision by bypassing the hard legislative work they would have to do to win their case in the public mind. Instead, they went straight to courts and a usurping mayor. But their tactic has set the stage - and the justification - for opponents' strategy. For if courts and public officials can simply dismiss the law on one side, they can on the other.

A Constitutional amendment won't happen quickly, if it happens at all. Until then, it will be nothing but a backdrop to a culture war I fear has hardly begun. The possibility of a compromise is decreasing rapidly. Both sides are girding to fight for all-or-nothing victories. It won't be pretty.

Update: This quote of Gloria Steinem seems revealing as to why the SSM advocates deliberately shunned a legislative process:

“We have to abolish and reform the institution of marriage…By the year 2000 we will, I hope, raise our children to believe in human potential, not God…We must understand what we are attempting is a revolution, not a public relations movement.”

This from an article called, "The Left’s War on the Family." Take a look.

by Donald Sensing, 2/24/2004 07:16:19 PM. Permalink |