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The Folly of Making Marriage a Federal Matter (The Danger of an Amendment Banning Gay Marriage)
Many people concerned about the erosion of the family have proposed amending the Constitution to ban gay marriage. Senate Joint Resolution 40 proposes such an amendment that would have just two sentences. The first one defines marriage as "a legal union between one man and one woman." The second declares that "neither this Constitution, nor the constitution of any state, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman." George Detweiler, a Constitutional attorney, explains one of the most serious problems with this: "[I]ts effect could be an explosive backfire. Marriage law, a matter now belonging exclusively to the states, would become part of the Constitution -- and this would give federal courts an opportunity to redefine and reshape marriage as a part of federal law, thereby overriding state authority for marriage law." ("How to Protect Marriage," The New American, Aug. 9, 2004, pp. 28-31).
An amendment in the name of saving marriage would further erode the separation of powers between the federal government and the states, resulting in even more power concentrated in the hands of a few people remote from the voters. The Founding Father sought to limit federal power as much as possible and to put up barriers to the tendency for government to grow and become centralized. This amendment would blow away some of the remaining barriers.
The problem with rogue federal courts pursuing their left-wing activist agenda does not require a major change to the Constitution. The Constitution has the solution already built in, but it has been tragically ignored. Detweiler explains the solution in "Keep FedGov's Hands Off Marriage" (The New American, Jan. 12, 2004):
Article III, Section 2, of the U.S. Constitution empowers Congress to enact exceptions to and to create regulations of the appellate jurisdiction of the Supreme Court. Congress has the authority to control or even entirely eliminate both the original and the appellate jurisdiction of inferior federal courts.
Rather than amending the Constitution, Congress should use its Article III, Section 2 power to protect marriage against federal judicial activists. By simple statute, Congress can eliminate the appellate jurisdiction of the U.S. Supreme Court over such issues as the constitutionality of state laws defining or regulating marriage. Such a statute could contain other exceptions for a wide range of topics where the Supreme Court has abused its discretion. The jurisdictions of inferior federal courts would likewise be limited.
One area of concern remains. Article IV, Section 1 of the Constitution requires states to give "Full Faith and Credit" to the "… public Acts, Records, and judicial proceedings of every other State;..." If a state is cursed with an invertebrate legislature that provides by law for same-sex unions, this constitutional provision would compel other states to recognize the validity of these unions. For this reason, the congressional act limiting the jurisdiction of the federal judiciary in matters of matrimony should also remove jurisdiction of federal courts to rule on any state’s failure to accord full faith and credit to same-sex unions. One or more federal statutes of this kind would be easier to enact than any constitutional amendment. Congress can pass legislation by a simple majority vote in the House and the Senate, but a proposal for a constitutional amendment must be passed by a two-thirds majority vote of both houses. Even then, it must be ratified by three-fourths (38) of the states, which is no easy task.
President Bush has said that we need such an amendment, and that "to defend marriage, our nation has no other choice." In so saying, he shows tragic ignorance of the document that he has sworn to uphold.