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Catastrophic Success

As if there weren't enough political opinionating out there, I, too, now sing the body bloglectric. Let me FEED you![XML]

Location: United States

Monday, November 08, 2004

Love and Marriage: Or A Simple Proposal

There seems to be a cosmic confluence of news cycle that is telling me to discuss Gay Marriage (really a piece on Jim Lehrer and ChicagoBoyz.net). Most of the debate at the moment is prompted by the nebulous "moral values" stat from the exit polls (which were SOO reliable when predicting the election winner...). I think there is a way to reach the end-state that the SSM advocates want while not "forcing" it down anyone's throat.

I don't understand why this approach hasn't been suggested, but as far as I'm concerned, it allows for the people to speak so Democracy is respected and still allows for a Federal recognition of marriage.

It seems to me that a lot of the opposition to establishing gay marriage as a reality in this country stems from a sense that the people have been removed from the process. The only state with real gay marriage benefits is Massachusettes and it was done by court fiat, not by the legislature and not by popular referendum. Sure, there are plenty of Americans who oppose it on moral grounds, but many don't oppose it, but want to be consulted (as one would expect in a democracy). I think a Federal Marriage Amendment is appropriate, but not the discrimination-enshrining one proposed by President Bush. How about this:

"Whereas the right to define marriage is not enumerated in this Constitution, such power rests with the States or the people, as per the Tenth Amendment. Therefore, marriage shall not be defined by any branch of the Federal government of the United States of America, but instead shall be determined by the individual States or the people therein, by whatever method they deem expedient according to their individual constitutions and existing legislation in those states. Federal marriage benefits shall be accorded to those whose marriage is recognized in the majority of States. All branches of the Federal government are hereby prohibited from ruling, legislating or otherwise enacting any other definition of marriage."

This prohibits the Supreme Court from forcing SSM on all states against their citizens' wishes, encourages a true debate and allows for the gradual acceptance of gay marriage across the nation as the more reticent states see that god has not caused California to fall into the Pacific ocean and that the sky has not, in fact, fallen. Instead, activist groups can concentrate on convincing individual states to accept SSM (which should be easier on a state-by-state basis because if all their resources are concentrated in one state, they become the big fish in the small pond rather than the small fish in the big pond of Washington). Canada's (legal) acceptance of gay marriage has been a province-by-province affair (if I understand correctly) with the Supreme Court preparing to weigh in now that there are only a few left. Also, once the majority of states (26) accept marriage by two people of the same sex, the federal government will recognize gay marriages in all fifty states, even if the state of residence doesn't recognize their marriage (assuming of course, they were legally married in another state). State and Federal income taxes are filed separately anyway, and the majority of federal marriage benefits are in the form of taxation and death benefits. States retain the power that is by nature theirs, what little the federal government has to do with marriage is satisfied by majority rule. Period. The end.

I honestly believe that the biggest cause of outrage comes from people believing that their opinion (vote, preference, etc.) don't matter and that they are (or will be as the case may be) ruled by a select few who can not be removed from the bench. The Supreme Court is the only branch of our government without oversight and who may not be overruled. It was to remove any chance of discovering any more "hidden" rights in the Constitution that Bush's FMA was supposed to accomplish. This is in reference to the Texas v. Lawrence ruling which declared all anti-sodomy laws unconstitutional based on a never-before discovered implied right to privacy hidden in the Constitution. While I don't dispute that such a right exists, I still don't understand the rationale that led to its discovery.

I can't find the article now because my old link has gone dead, but there was a law passed on or around September 26th that barred a state court from ruling on a particular issue. Sadly, I can't remember anything else about this other than that it was in the 9/27 AP story and it was in the Chicago Sun-Times. At any rate, if this law sets a sound precedent, it may not take an amendment to stop the Judiciary from ruling on a particular topic, and provide some much-needed congressional oversight of the courts, but as the article implies at the end, Beware the Law of Unintended Consequences.