The hypocrisy of the religious right will be evident this week when their Republican representatives in Senate, attempt to take away the states right to decide matters of public policy. The same states rights they tout when attempting to block access to abortion. How many times have they argued that the concept of federalism requires that these issues of public policy are best left to the individual states to decide? This week they will attempt to limit the states right to decide public policy with the Federal Marriage Amendment.
Whether or not you support the right of same sex couples to marry, you should be very concerned about the changes they want to make to our constitution. The very concept of federalism is being threatened. Whether states should give same sex couples the right to marry is very different from the question of whether the federal government should prohibit them from doing so. It is the right of individual states to decide the law for themselves that is being threatened. The Federal Marriage Amendment does not just stop so called activist judges from recognizing same sex marriages, it prevents the citizens of a state, through the democratic process, from choosing whether or not to recognize same sex marriages. It takes away our democratic right to decide the laws of our own state.
Federalism is the principle that the federal governments powers are limited to those powers necessary to protect nationhood, national economy and individual rights. All other powers are reserved for the state to legislate. James Madison, in Federalist no. 45, explained that, “The powers delegated by the proposed Constitution are few and defined. Those which are to remain to the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce . . .. The power reserved to the several States will extend to all object which, in the ordinary course of affairs, concern the lives, liberties and property of the people, and in the internal order and improvement and prosperity of the States.” Federalism has been working on the issue of same sex marriage. The nation has been debating the subject. Forty-five states have barred recognition of same sex marriages. Other states have found solution that suit their citizens, California, Vermont and Connecticut recognizes various forms of civil unions, and Massachusetts recognizes same sex marriages. Each state has found a solution that meets the needs of its citizens and if they find in the future it does not meet their needs they can change their own laws. The 1996 Defense of Marriage Act already defines marriage as the union of one man and one woman for the purpose of federal law, and provides that states may refuse to recognize same sex marriages performed by other states.
The religious right would like you to believe the democratic process is not working because it has been highjacked by activist judges. The facts simply don’t bear this out. The fear mongers said, the Goodridge V. Health Dept. decision that found, “barring an individual from the protection, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution” would lead to a rash of judicial decisions spreading same sex marriage across the country. The reality is quite different. Advocates of same sex marriage have won in three state courts, and lost in every state appellate court. The majority of cases have ruled against same sex marriage. Since eighty-seven percent of all state court judges face some sort of election, they are not going to remain as a judge long if they make rulings unpopular with the majority of their citizens.
The Federal Marriage Amendment would be the first time the federal government defined and regulated marriage. Think carefully if this is a power you want to hand over to the federal government. Jimmy Carter in his book, Our Endangered Values, said, “Since Christ himself condemned both adultery and divorce, a constitutional amendment with more biblical authenticity might be ‘Adultery and divorce are condemned, and marriage is defined as a legal and spiritual union between a man and a woman until they are parted by death.” This of course is the slippery slope, when you give to the federal government the power to define and regulate marriage, they may go further than you would like. How many Americans want an amendment to ban divorce? The divorce rate would indicate that divorce is a greater threat to most heterosexual marriages than same sex unions. As Jimmy Carter said, “It may be best to leave the U.S. Constitution alone.”
The Federal Marriage Amendment would be the first amendment to limit the states ability to expand the rights of its citizens. It would require some states to deprive it citizens of rights they currently enjoy. Previously the constitution has served to limit the state right to deprive citizens of rights. It has never been used before to prohibit a state from granting rights to it citizens. To allow the constitution to be amended to deprive citizen of rights they currently enjoy is a very dangerous thing. After all, if they can do it to the Gays, they can do it to you.