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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.)
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