Wednesday, May 24, 2006

Why Conservatives Should Oppose the Federal Marriage Amendment

In June, the House will again revisit the Federal Marriage Amendment. What the Amendment does, in essence, is define marriage nationally as a union between a man and a woman and clarify the Constitution so it does not require granting marital benefits to same-sex couples.

Is the FMA a good idea from a conservative perspective? I believe not. Conservative thought assumes that fundamental social questions ought to be left to the legislatures of each of the fifty states (which is why most conservatives opposed the Supreme Judicial Court of Massachusetts imposing same-sex marriage on the citizens of Massachusetts).

Federalism assumes that each state is better equipped to determine the desires of its inhabitants. If a minority of that state disagrees with a policy, they are always free to "vote with their feet" and go to a state with a different policy. For example, if Kansas passes a law restricting abortion, women in that state can go to New York, where abortion laws are probably less onerous (I am assuming these laws to be facts; I don't really know much about the abortion laws in those states).

The FMA defines marriage nationally, denying each state its opportunity to fulfill the wishes of its inhabitants. If in California they want full recognition of same-sex marriages, why not allow it? People who are opposed to same-sex marriages can always move to Texas, a state that amended its constitution to prohibit gay marriage. Why not give individual states the choice to decide?

One argument in favor of a constitutional amendment is that states are obligated to recognize other state's marriages. So if New York recognizes same-sex marriage, Hawaii might be required to recognize that marriage under the Full Faith and Credit Clause of the Constitution. Even worse, residents of New York might go to Hawaii and get married, basically circumventing the whole idea of federalism. One state could decide marriage policy for the whole nation.

This argument fails for two reasons. First, the Full Faith and Credit Clause has been interpreted to include a public policy exception, where a state could deny recognition because the marriage strongly runs counter to the state's interests.

Moreover, even if the public policy exception would not be applicable in this case, that only leads one to conclude that the Constitution should be amended to give states the ability to pick and choose which marriages they wish to recognize. The Defense of Marriage Act purports to do that, but DOMA is on shaky legal grounds. A constitutional amendment that constitutionalizes DOMA would seem more apt. Each state could then decide the definition of marriage and no other state would be bound by that state's marriages.

Some principled conservatives might support the FMA because they feel the judiciary will step in and find a right to marriage in the Constitution (or that the right of marriage in the Constitution is broad enough to include SSM). That is a fair point. But given the Supreme Court's current structure, I fail to see any way the Court would force SSM on all the states. That just seems implausible right now. That concern is not strong enough to override the principles of federalism, something every conservative should support.

15 Comments:

Blogger Robbie said...

And on a simpler level, for conservatives who wish to make the role of government smaller, how is it justified that the government is able to define love (as ill-defined as it may be)?

5/24/2006 7:31 PM  
Blogger Jewish Atheist said...

Why Conservatives Should Oppose the Federal Marriage Amendment

Because it's (morally) wrong just as the proposed Anti-Miscegenation Amendment was in 1912. A century from now, both conservatives and liberals will agree that the people supporting the FMA today are ignorant and wrong. But by then there will no doubt be some other discriminatory thing the conservatives are fighting for. I know we're trying to keep this blog civil -- I am not being hyperbolic. I really think the FMA is the moral equivalent of the AMA. I understand that people have religious objections to gay marriage, but as far as I'm concerned, their right to limit it extends only to not having gay marriages, not officiating at gay marriages, and not attending gay marriages.

I used to wonder, when I was young, how it was that so many people supported institutionalized racism since almost everybody in today's America is at least publically against racism. When I became aware of issues related to homosexuality, I saw how the mindset works.

Don't tell me it's not about homophobia, either. I hear gay jokes from my (educated, professional) peers all the time in a relatively urban environment. These people mostly wouldn't think of making a racist joke (at least about African-Americans) but homophobia is still socially acceptable. In 50 years it won't be.

If your grandchildren ever ask you (not YOU nephtuli, the generic "you") whether you supported gay rights in the early 21st century, I hope you won't be embarrased by your answer. And not because you retain your homophobic views like some of our grandparents have retained their racist ones.

5/24/2006 8:59 PM  
Blogger Charlie Hall said...

'fundamental social questions ought to be left to the legislatures of each of the fifty states '

Not just the legislatures -- the constitutions of those states, as interpreted by their courts.

'where a state could deny recognition because the marriage strongly runs counter to the state's interests'

But the Supreme Court severely limited that public policy exception in Loving vs. Virginia.

' I hope you won't be embarrased'

See my post on the issue:

http://charliehall.blogspot.com/2006/03/problem-with-homosexuality-r-rated.html

5/24/2006 9:19 PM  
Blogger Classmate-Wearing-Yarmulka said...

Well said Nephtuli.

5/24/2006 10:11 PM  
Blogger Nephtuli said...

Robbie,

Conservatives believe the government does have the right to decide issues such as marriage. That isn't really defining love.

JA,

Let's just say I disagree, but that debate is for another post.

Charlie,

Loving did not deal with the Full Faith and Credit issue. The public policy exception is still in full force.

CWY,

Thanks.

5/25/2006 12:05 AM  
Blogger Nephtuli said...

Not just the legislatures -- the constitutions of those states, as interpreted by their courts.

To a degree. I do not believe judges should be imposing their world-view. A reasonable interpretation is acceptable (goes back to my last post).

5/25/2006 12:07 AM  
Blogger Robbie said...

I do not believe judges should be imposing their world-view.

But that's exactly their job. They weigh the facts against what they themselves know to be true about law and make their decisions.

I think the more accurate phrase would be:

"I do not believe judges should be imposing their world-view when it is not the majority."

5/28/2006 7:45 AM  
Blogger Ezzie said...

But that's exactly their job. They weigh the facts against what they themselves know to be true about law and make their decisions.

I think the more accurate phrase would be:

"I do not believe judges should be imposing their world-view when it is not the majority."


Woah. I completely disagree, Robbie, and so should you. Firstly, general opinion constantly is shifting - a shifting by majority opinion would be terrible. Furthermore, it would constantly squash minority views, such as ones regarding homosexuality.

Judges should not be legislating from the bench.

6/06/2006 12:41 PM  
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