Sunday, March 25, 2007

To amend or not to amend

In the debate over gay marriage a commonly expressed opinion is that a constitutional amendment to define marriage as being between a man and a woman is a poor idea. The usual reasons given are first that the Constitution is the source, or recognizer, of our liberty. The Constitution tells the government what it can and cannot do, not the people - so the reasoning goes.

I hate to disappoint all those people but the Constitution contains within its body the definition of the crime of treason. Article III, Section 3 reads as follows:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life f the Person attainted.

So there's one thing that the Constitution tells us we can't do (I wish San Fran Nan and the congressional Democrats would read this).

The other principal reason for opposing a "gay marriage" amendment is based in the idea of federalism. Each state is supposed to set its own laws within a broadly defined matrix. This makes each state a "laboratory of freedom" in which new ideas can be tried out and the results compared with other states. This is supposed to give the people the needed information about what works and what doesn't.

Now this is a fine idea, usually. However there is one reason that the federalist approach will not work in this case. Article IV, Section One of the Constitution reads this way:

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.

A marriage is a legal contract between the two parties. A marriage performed in one state is held to be legal in any other state. Even if a couple is too young to be married in one state if they go to another state where the law allows them to wed then the first state must honor their marriage. The same holds true for divorce. Some states like North Carolina require a couple to live apart for 1 year before a divorce in finalized. Others like Tennessee will grant a divorce in 30 days and some will dissolve a marriage on the spot. North Carolina must recognize divorces obtained in other states by its citizens even when they do not conform to North Carolina's divorce laws.

The same exact thing should hold true for marriages between homosexuals. I know that a great many states are passing laws or amendments to their state constitutions banning gay marriage. I know that the federal legislature has passed the Defense of Marriage Act. However the Act has not been tested before the Supreme Court and is certainly unconstitutional.

Sorry but I apply the same unbending absolutism to every other part of the Constitution that I do to the Second Amendment. I do not care that I would not like the outcome of a strict constructionist or originalist verdict on a challenge to DOMA I would hope and expect the court to uphold the constitution as written.

To sum up there are only four ways to prevent one state from legalizing homosexual marriages which would need to be honored in every other state.

1. Pass an amendment to the United States Constitution defining marriage as between a man and a woman.

2. Pass an amendment to the United States Constitution creating an exception to Article IV, Section 1 (the full faith and credit clause) for homosexual marriages so that states do not have to recognize gay marriages performed in other states.

3. Get every single state to amend its state constitution to define marriage as between a man and a woman and somehow magically guarantee that they will never change their mind and resend the amendment.

4. Pray that when the DOMA comes before the Supreme Court that there are a majority of conservative justices who are detestable enough to engage in the same kind of loathsome judicial activism which marks the corrupt character of liberal justices. And while you are at it pray that that activism will confine itself to upholding DOMA and not manifest itself in ways that you will find hateful.

To summarize, in order to prevent gay marriages from becoming legal in the entire nation we must either get the states to unanimously agree to ban them and ensure that no state changes its mind. Or we must amend the federal constitution on one of two ways. Or we must sell our souls and support judicial activism.

Since the 50 states will never agree permanently about gay marriage and I will enter a gay marriage myself before I support judicial activism I vote for a constitutional amendment. If you want all gay marriage banned everywhere go with option one. If you are willing to see it in some places as long as everybody doesn't have to put up with it then go with option two.

Full text of the Constitution here.