A More Narrow Gay Marriage Amendment Proposed by Pundit...thoughts?

Now, I am going to say right up front that I usually avoid throwing myself wholesale into any topic that involves gay issues in the slightest, because (as you can easily see just perusing the front page), they tend to polarize people and draw out a great deal of hostility. However I think this can be focused enough that it might remain unemotional and fit GD.

Personally, as a libertarian, I support one of two alternatives: marriage recognized between any two people (same or different genders), or no legally recognized marriage at all. In fact, I rather prefer the latter as giving the greatest flexibility for all people to form whatever relationships they wish with no single type of relationship being given special favors. But as a federalist, I recognize it is not the place of the federal government to be in the business of defining marriage, and so I opposed DOMA and do oppose a federal constitutional amendment defining marriage, as was recently proposed.

However, while I am presently reserving judgment on it, I saw this idea today from a well-known conservative pundit, which I shall link you to and quote the relevant portion of right now:

Now for the moment, ignore the source of this idea (as I usually do when he speaks on so-called “moral” issues.)

Despite the rapid extension of “substantive due process” arguments that are starting to put almost every issue within the power of the feds, marriage is traditionally a state concern. This would further federalism by keeping that within a state’s control. Now we went all over that sort of argument discussing Lawrence, but keep it in mind.

Now consider the effect of such an amendment. Nationally recognized gay marriage would just about cause a revolt in a large number of states. With this amendment in place, people in Alabama would no longer have any interest in what Hawaii did with the issue. The anti-gay Christian lobbyists would have almost zero incentive to fight court battles in those states to defeat it, because the ultimate court decision would pose no “danger” of resulting in legal marriages recognized in the Christian lobbyist’s core region of supporters.

Now one could certainly hold to the “all or nothing” line, but the “all”, even could it be achieved, runs a great risk of causing a dramatic backlash from the parts of this country in which social conservatives still flourish. There may seem like no reason to compromise when your side has the chance to win the whole kit n’ kaboodle through the court system, but the possibility remains of a social conservative reactionary movement to that result that would be unpleasant for all involved and create a vitriolic hate-filled culture war. If an amendment like this were to pass, the socially progressive states would become like isolated test-cases. Once the rest of the country sees that gay marriage in those states hasn’t brought the sky falling down, public opinion would gradually warm to the idea until the majority of states would adopt gay marriage, at which point the ones that didn’t would be put under pressure to adopt it (or at least agree to recognize it) for practical reasons since they have to deal with those states on a regular basis.

Again, as a libertarian I don’t advocate the present system of marriage. But as a federalist, and as someone who would rather the country not become embroiled in a divisive fight and throw the control of the GOP even further into the hands of the social-conservative wing, the idea at least gave me pause.

A very interesting perspective, Rex, and thanks for bringing it to the board.

I’d like to withhold comment until I see what some of the gay posters think of the idea – after all, any stance I take (other than my opposition to DOMA, which is based in the horrible [un]constitutional precedent it sets) is in support of their rights.

Offhand, it sounds like the sort of Fabian approach that would work well. And, interestingly, it does no more than set beyond the reach of change by a SDP-based court decision what Dewey already assures me is the actual law as it is followed today.

I feel pretty much like you on this issue. It would be better if the government had nothing to do with defining or recognizing the institution of marriage. But given that we’re too far down that path to change, I would be happy to see marriage between any two adults recognized. But whether we like it or not, difficult social change can take time and I am a big believer in the idea that idealism often must give way to pragmatism. And I am very concerned about the Republican party being pushed even further to the right. So the idea you mention is intriguing. Even so, I’m not totally comfortable with it. I am uncomfortable with the idea of marring the constitution with such a specific and arbitrary amendment which is there for the sole purpose of putting limitations on a certain group of people. Also, being heterosexual, this doesn’t impact me personally so I’m not sure that I have the right to agree to such a compromise. It will be interesting to see the opinions of dopers who are personally impacted by this issue.

I’m completely torn here myself.

I would oppose both in equal measure, because both enshrine bigotry to one degree or another in our Constitution. But given a choice between the two, a DOMA-type amendment as in the OP would be less noxious than the current FMA.

I think this would be a good constitutional compromise: it would likely deflate any constitutional amendment to ban gay marriage outright, allow change to move gradually state by state, and leave the issue of federal recognition purely in the realm of affecting federal, not national, benefits and so forth.

It’d be nice if this was true, but I don’t think it is. I think most of these people don’t want gay marriage legal anywhere, not just in their own states. We’re dealing with people who apparently feel no compunction about bossing around strangers and telling them what’s right and wrong when it’s not really their business, so I don’t think it would dent their resolve if it went on a state-by-state basis.

I wouldn’t support such an anti-gay amendment, even one as abbreviated as the proposal in the OP. However, I would choose the “marriage is in no way federalized” amendment over the “to hell with all gay people, they’re scum” amendment favored by the Republican Party.

In short, I wouldn’t move to Canada if an amendment like that of the OP were passed. I would if Bill Frist’s pet project becomes part of the Constitution.

While this might seem to be a way to forestall tension between the states, it probably will do nothing along those lines at all. The number of gays in the total population is relatively small. And only some (smaller) percentage of the total populace will take the step to avail themselves of a gay marriage. So, if this plan is adopted, we will effectively ban certain people from freely moving from one state to another. That will be as much of an issue as having relutctant states accept the few gay married folks who want to move there. Imagine the news stories about individuals who have to turn down a job (or job transfer) because they would have to change their marital status. A Hobbsian choice for sure.

An interesting idea, but I just don’t see it actually smoothing the waters any relative to a full acceptance of gay marriage across states.

got to put in my two cents on the subject, seeing as how someday I would love to be married. unfortunatley, most gay men and lsebians feel that rather than use the system as the religious wing has done and campaign and fight for what they want from the local level, through the state level, and up to finally getting the federal government (won’t go into how I fel about a government that has way oversteped it’s boundaries) to follow it’s ideals and goals. if gays and lesbians followed this ideal rather than running to the courts and crying foul every time, eventually things will change for the better.

if you look at what happened after bowers, most states had sodomy laws repealed either by their own state’s high court, or the legislature itself overturned the law. so, instead of slowing working for reform, we get a SCOTUS decision, that brings to the forefront the discussion that is raging now in several areas on a local level, to the national level, and brings out all the pundits either for or against and they make up some remarkable diatribes.

so, as far as what is proposed in the OP, now that I have rambled for a while, I think neither is a good idea, and the gay community needs to back down for a bit, rest, and campaign at the grassroots level for a while before tackling national recognition of “gay” marriage.

Campaign for what, exactly? This has been an issue for some time, really…

:snort:

There is nothing whatsoever “rapid” about the "extension: of SDP. SDP is a remarkably limited doctrine, and the only new addition to its scope in the last two or three decades is the SDP right to boff somebody of the same gender.
As for Buckley’s proposed amendment, why on earth should we amend the Constitution to prevent the FF&C clause from forcing states to recognize each others’ gay marriages when (a) a federal statute already accomplishes that goal, (b) existing FF&C doctrine strongly indicates that states need not recognize each others’ gay marriages anyway, © no court in the country has required one state to recognize another’s gay marriage, and (d) there ain’t no gay marriage anywhere in the country in the first place?

Freakin’ Republicans [sub]not you[/sub], always treating the Constitution like an Etch-a-Sketch with no damn good reason.

This is a horrible idea.

Why don’t we allow states to take their own stances on slavery while we’re at it?

Minty: I believe that many are concerned that the SCotUS will declare the DOMA unconstitutional, hence the proposed ammendment. I assume you must be aware of that… Assuming this happens, why do you believe that no state will have to recognize a gay marriage from another state? Is there any precident? (I don’t understand your “c” item since, as you note in “d”, there ain’t none yet.)

I believe that many are also concerned their congressmen are Reptilians. Quick! We need to amend the Constitution to prohibit space reptiles from serving in Congress!

No, sir. It is stupid in the extreme to amend the Constitution based on speculation about what the law might one day become. If it ever happens, then maybe you’ve got a point. Until then, don’t go messing around with the text of the FF&C clause.

I don’t have time to find the case law from the Supreme Court, but the relevant prinicple is that the FF&C clause does not require a state to recognize or give effect to the acts of a second state that are against the public policy of the first state.

And this is different than we have now?

Seriously, if gays are going to be the targets of vitriol and hate anyway, I think it’s reasonable that they would want to have the law on their side.

Julie

I think the odds of at least one state alowing gay marriage is slightly larger than space aliens running for congress. I don’t know what your point is here. I don’t agree with the Pubs who want to do this, but it makes sense from their standpoint. And since 36 states have a DOMA like statute on the books, it’s not unrealistic to think that those states would ratify said Constitutional Amendment.

I also think it’s stupid, but if I thought politiicians never did stupid things, I wouldn’t be concerned about this actually happening.

Very interesting. None of the news commentary I’ve seen has indicated this was a possibility, but I’ll take your word for it. Something I’ll pay attention to in the future. I would expect that if one states legalizes gay marriage, then another state’s unwillingness to apply the FF&C to the marriage will be challenged in court soon thereafter. I guess we’ll find out then.

I agree. If you allow state’s to decide individually whether or not to allow gay marriages, your reinforcing their belief that they are morally right, and lengthen the amount of time that acceptance will begin to occur in those states.

I am not gay, but I know if it were some other ludicrously stupid issue some ‘moral’ person had against me, I would not be willing to wait the amount of time needed for them to come around on their own.

but, if we allow everything to be decided by the courts, then are people going to change their mind simply because a bunch of judges (SCotUS or lower) told us we had to do it? look at what happened after the courts forced school desegregation…riots, deaths, and an upswing in violence towards african-americans everywhere. (sorry no cites at the moment, but I do live in DC, and almost half the city was decimated by these, and the king death riots). IMHO, if the courts are continually asked to make the decisions for the people, then the people will start to take it out on those petitioning the courts. as if this is not happening already. but unfortunately, in our litigeous society, everyone feels the only way to get what they want or feel they deserve is to go to the courts and get it rammed down everyone’s throats, be it presidential appointments, or overturning of sodomy laws.

I would just point out that the gay couple in Lawrence didn’t go “running to the courts” - they were taken there by the police and the local D.A., and charged with a criminal offence. Any accused has the right to make all available arguments in defence to a criminal charge. The accused did just that. If you want to blame anyone for setting up the Supreme Court to expand SDP, I’d look to the Texas Legislature, police and the D.A.

So, the Jim Crow laws should have continued to be observed, Rosa Parks should have gone to the back of the bus, and Martin Luther King Jr. shouldn’t have had a dream?

You think that the process should have taken 50 years instead of 20 to intergrate?

I am wondering what part of the country you are in and if your grandparents voted for George Wallace.