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An unforeseen side effect of gay marriage


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Interesting article on another side effect that gay marriage might lead to:


by Steve Chapman


I don't know if gay marriage will have all the bad effects predicted by conservatives, but it's already having one they didn't foresee: driving them stark-raving mad. They've set out to prove they can devise one remedy after another that is not only unnecessary but worse than the problem it's supposed to fix.


Their discombobulation began when the Massachusetts Supreme Judicial Court struck down the state's ban on gay unions and ordered the state to issue marriage licenses to same-sex couples. Never mind that the ruling had no effect beyond the Bay State. From the reaction, you'd think same-sex marriage was going to be mandatory for all. The call went out that something, anything, had to be done.


First, critics of the decision offered a constitutional amendment banning same-sex unions anywhere in America. Despite being endorsed by President Bush, it blew up on the launch pad. Constitutional amendments need 67 votes to pass the Senate, and this one attracted only 48 supporters.


So conservatives promptly came up with another idea. If you can't amend the Constitution, you can make it irrelevant. They propose to do this by taking the whole issue away from federal judges. In July, the House of Representatives approved the Marriage Protection Act, which effectively bars any federal court, including the Supreme Court, from hearing challenges to laws against same-sex unions.


Why is it needed? "This legislation ensures the people and the states will have a say in marriage policy," declared House Judiciary Committee Chairman James Sensenbrenner. It may come as news that conservatives want the states to have a say in marriage policy. The constitutional amendment, after all, would have done exactly the opposite -- forbidding any state from legalizing gay marriage.


In fact, federal law already protects the right of the states to do whatever they darn well please. In 1996, Republicans were worried that Hawaii was going to allow same-sex marriage and, conceivably, force other states to accept gay unions transacted there. So, over the howls of gay-rights groups, they pushed through the Defense of Marriage Act (DOMA), denying federal recognition of same-sex marriages and assuring each state the power to do likewise.


Back then, DOMA was championed by conservatives as a way to protect traditional marriage as well as democracy. Senate Majority Leader Trent Lott, R-Miss., described it as "a pre-emptive measure to make sure that a handful of judges in a single state cannot impose a radical social agenda upon the entire nation." But now, having failed to get their constitutional amendment nullifying DOMA, conservatives want to make sure supporters of same-sex marriage can't persuade the Supreme Court to issue a decision nullifying DOMA.


Barring judicial review of a category of laws is not exactly a conservative notion. Courts have taken responsibility for deciding the constitutionality of laws since the early years of the republic, a role set out for them in the Federalist Papers.


Stripping them of that power is a drastic step. Conservatives say we need to keep hyperactive judges from shoving gay marriage down all our throats. But who says they're going to?


The Constitution has long been understood to protect state power over marriage -- even in the dark days when Southern states refused to accept interracial marriages from elsewhere. DOMA reaffirms the point by stipulating that states are free to treat gay weddings as the equivalent of Monopoly money.


Of course, it's theoretically possible that the Rehnquist Supreme Court, dominated by Republican appointees, will suddenly discover a constitutional right to same-sex marriage. But worrying about that is like worrying that Al Sharpton will take a vow of silence. The Marriage Protection Act amounts to a pre-emptive strike based on a preposterous fear.


It would do serious collateral damage, though. The bill would set a precedent that sooner or later will bite conservatives on the bottom. Liberals could bar courts from using the Second Amendment to strike down gun control measures, or from invoking the Fifth Amendment's protection of property rights to block environmental regulations.


Once we start down this road, says University of Chicago law professor Cass Sunstein, "there's no place to stop." Court-stripping, he predicts, would become "an irresistible tool" whenever Congress gets the urge to pass a constitutionally dubious measure. This is worse than a zero-sum game. It's more like the old vision of nuclear war: Mutual Assured Destruction.


To react to one state's legalization of gay marriage by mutilating the Constitution or wrecking the separation of powers is the equivalent of elephants stampeding at the sight of a mouse. It's more sensible to just tolerate the little critter.

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Let me just throw this out. Why cant California have laws allowing gay marriage and why cant florida have laws not allowing it. State laws often differ, with some states having for example more strict penalties for certain crimes and such. The gay marriage issue should be left to the states, rest assured that many states will allow it, and NO other states should not be forced to accept those laws. Eventually the general trends will shift allowing more and more gay marriages in more states. (By the way before anyone counters this with constitutional issues, let me state that i am addressing this as a matter of principle not as a legal issue)

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Marriage standards are already left up to the states.? I know for sure there are different age limits.




then why is gay marriage being disucssed at the federal level



Look for my opinion about 6 posts upstream. IMO, it was an election year trap some Dems fell for hook line and sinker. Clever actually.


Note well how carefully K/E presidential campaign has tap danced around it. They were smart enough to not take the bait.




Off-topic but if most of the country is against it why should it be legal (please no equal protection crap) Life, liberty, property....not liberty, equality, fraternity.

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um, your mixing up two different things. The due process clause deals with life, liberty and property and the equal protection clause is on its own:


No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.





And we are a country willing to defend the minority against the will of the majority. Its one of the founding principles which you so aptly throw off as nothing relevant. Did you say you were a poly sci major?

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