Support Denmark, Defend Freedom

Tuesday, June 06, 2006

My Big Fat Gay Wedding Post

"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."
These are the 53 words social conservatives want to use to debase the Constitution of the United States, to lower one of the most important political documents in history to roughly the same level as a PTA handwritten note tacked to a bulletin board that lets us know that Martha will be making chocolate chip cookies for next Thursday's bake sale.

These so-called "conservatives" want to take a document set up in no small part to prevent the government from infringing on individual liberty and add 53 words that amount to the exact opposite. So much for original intent and strict constructionism, which have always been nothing but convenient code words for conservatives looking to prevent the judiciary from interfering with their agenda anyway. (Just as loose constructionism serves the same purpose for liberals, in that it's a philosophy that conveniently allows judges to see things in the Constitution that match up suspiciously well with their desires.)

The last time something like this happened it led to what I'm sure was the wonderful and charming Prohibition era. It's an unfortunate truism that there will always be people who think it's their duty, whether before God or just "for your own good," to make unlawful the things that they find distasteful. These people for some reason can't stand the thought that somewhere, somehow, consenting adults are doing something they think is icky, as if the mere fact of knowing that two men may be married in Massachusettes is just too much for them to handle even if they live in Iowa.

Obviously I don't have a problem with gay marriage, and in fact, I'd be happier if the government weren't involved in marriage at all. I simply fail to see how the fact that one man might want to listen to another man nag him for the rest of his life affects me at all. Sorry, but I'm not buying the "It'll weaken the institution of marriage and therefore be harmful to families and therefore lead to the unraveling of Western civilization" argument. As has been pointed out ad nauseum, the institution of marriage is being weakened just fine by straights.

But beyond all that, even if you oppose gay marriage, the notion that this issue reaches the level of a constitutional crisis is absolutely ludicrous, particularly if, as supporters claim, the primary goal of the amendment is to allow "straight states" to not recognize any gay marriages or civil unions performed in potential "Pat Robertson says we caused Katrina" states. The Defense of Marriage Act signed into law in 1996 by perjurer and liberal icon Bill Clinton already allows for this, and should this Act be ruled unconstitutional at some point - a key conservative argument for the need for a constitutional amendment - there's always the public policy exception to the Full Faith and Credit Clause:

Section one of Article Four of the United States Constitution is known as the Full Faith and Credit Clause. It was primarily intended to provide for the continuity between states and enforcement across state lines of non-federal laws, civil claims and court rulings. Without this clause, enforcement of state-to-state extradition, portability of court orders, nationwide recognition of legal status, out-of-state taxation, spousal and child support, and the collection of fees and fines would all be impossible without separate federal action, or a similar action by the other states.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Though courts from the lowest magistrate courts to the highest state courts practice full faith and credit on a daily basis, appeals courts in the various appellate court districts often make conflicting rulings on matters of law, which may stand in conflict until resolved by the U.S. Supreme Court or by legislative action. The Supreme Court of the United States has long recognized a "public policy exception" to the clause. If the legal pronouncements of one state conflict with the public policy of another state, federal courts in the past have been reluctant to force a state to enforce the pronouncements of another state in contravention of its own public policy. The public policy exception has been applied in cases of marriage (such as polygamy, miscegenation or consanguinity), civil judgments and orders, criminal conviction and others.

So ironically, if DoMA were ever ruled unconstitutional on the grounds that it violates the Full Faith and Credit Clause, the public policy exception of that same clause would almost certainly be sufficient to achieve the goal of DoMA anyway. Eagle-eyed readers will no doubt wonder, given this, why DoMA was enacted in the first place, or perhaps even question the need for a Federal Marriage Amendment.

To answer the latter question, let's first take a look at what Walter M. Weber, senior litigation counsel with the conservative American Center for Law and Justice, wrote last Friday at National Review Online (via Stop the ACLU):
The FMA does leave marriage to the states. If a legislature wants to legalize homosexual “marriage,” it can do so. What the FMA does is stop federal and state courts from forcing states to allow same sex “marriage.” So if you’re pro-state choice, you should support the FMA.
Really? Let's take a look at the first sentence of the FMA again:
Marriage in the United States shall consist only of the union of a man and a woman.
Doesn't sound like much is being left to the states, does it.

Turns out that NRO published a correction earlier today, stating that contra Weber, the FMA would prohibit state legislatures from legalizing gay marriage. Weber's response to this correction is a meisterwerk of the kind of contortionism we haven't seen since Slick Willie oozed his way out of DC:
I’d call it more of a clarification [than a correction]: I wrote that under the FMA, “If a legislature wants to legalize homosexual ‘marriage,’ it can do so.” The FMA would bar a state legislature from enacting homosexual marriage under the name “marriage.” At a minimum, the state would have to use a different name (like “civil union”). And if the FMA means that the substance of marriage (not just the name) is reserved to one man and one woman, a state legislature would also have to limit the benefits/responsibilities of a “marriage lite” so as not to come “too close” to real marriage. How close is “too close” would be up to the courts to decide. See, e.g., Knight v. Superior Court, 128 Cal. App. 4th 14, 26 Cal. Rptr. 3d 687 (2005) (ruling that California law giving domestic partners the ‘same’ rights and responsibilities as spouses was consistent with a state initiative reserving marriage to ‘a man and a woman’). The bottom line is that, under the FMA, state and federal courts could not force homosexual marriage on the states, but that legislatures could go as far as the courts would let them.
I ran this through my patented DoubleTalkTM translator and this is what came out:
Damn. You caught me.
The DoubleTalkTM translator is nothing if not efficient.

You see, whereas old school conservatives really did believe - for better or worse - in the concepts of federalism and states' rights, today's conservatives, particularly those of a religious bent, have absolutely no problem using the full power of the federal government to advance their agenda. The only time they start screaming about states' rights is when a federal law is passed that they don't cotton to. And yes, there is a word for these kinds of people, and yes, the word is hypocrites. But don't be fooled: the purpose of the FMA is not to ensure that one state doesn't have to recognize another state's gay marriage: it's to take away the right of the people in all states to decide this issue for themselves. Oddly, this is the same thing conservatives complain the judiciary is doing now.

Everyone knows the FMA doesn't have a prayer of getting the 67 votes it needs to pass the Senate, and that it's being pushed to a vote by conservatives solely because they think it will help them at the polls in November. And once again, I thank God that we've won the war on terror and that our politicians have the time to concentrate on issues that are clearly critical to the nation's security.

Because nothing says "I deserve your vote for re-election" like playing cheap political games with the Constitution.

Free the PeopleTM!

And remember: If you're opposed to gay marriage, just don't marry someone of the same gender and you should be fine.

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Anonymous James said...

If they are so for states rights then why dont they let states set their own drug policies, or any other thing they mandate?

Pandering to swing the voters back to the right. The left wants to make you put a stamp of approval on gays.

Ive said it before and Ill say it agin. If you aint sticking up for peoples freedoms whom you dont agree with, then you aint sticking up for freedom at all.

Its like drugs you legalize it and everybodys gonna want to try it.
How can people be so naive?

Anonymous fmragtops said...

Two points. First, I am against gay marriage, but that should be left up to the states. The Constitution is not the place for this argument.

Second, this is also one of the reasons I'm not a Libertarian. When you argue that politicians shouldn't enact their morals into law, I respond that all laws are a representation of someone's morals. Trust me, if it was up to me, the restrictions on murder would be loosened, but that's another story for another time.

Blogger The Cranky Insomniac said...

james: exactly.


1. That's because you're a principled conservative, unlike the hypocrites in DC.

2. Of course all laws are a representation of someone's morals, and it's foolish to argue otherwise.

But there are morals that say "you can't do this because it harms someone else," and morals that say "you can't do this because I don't like it." I'm a libertarian (small "l" please: I'm not a party member) because I don't think illegalizing things that only directly harm the doer of those things is at all moral.

KYFHO, brother. KYFHO.

Anonymous fmragtops said...

Okay, forgive me for being an idiot but KYFHO is over my head. What's it stand for?

Blogger The Cranky Insomniac said...


Anonymous fmragtops said...

It stood for what I was thinking it stood for. I don't know if I can go with that either. I don't think retaliation should be limited to a perceived threat. I should be able to execute people for being minor annoyances as well. ;)

Anonymous James said...

If youre against gay marriage do get into one. Im personally against marrying fat chicks so I didnt. Doesnt mean I have to ban them all from taking place.


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