I call Bricker to attest that I’m not much of a strict constructionist, but in point of fact I do have my moments of tendencies towards it. For example, I find stretching the Interstate Commerce clause so thin you can see through it as constitutional justification for whatever bug Congress may have up its collective ass at the moment, to be highly offensive. You want Congress to legislate on civil rights, or marriage, or fair sentencing practices? Be honest, and propose a constitutional amendment to authorize it; don’t play devious semantic games to manufacture a justification.
Purely and simply, John, I see nothing in the Constitution that would authorize Congress to legislate on those issues, save in their power to assure that uniform practices are used by the individual states to deal with family law issues resolved in a different state, and for some reason brought to their official attention.
That’s exactly why. Because your proposal would require everyone in every state to change their mind because of what a quasi-majority thinks. Answer your own question, and you’ll see the objection we have to what you say.
We’ve done that argument before. Regional pride, a rebellious streak against what the Northeast thinks ought to be done across the board, bunches of other issues. I’ve personally seen Southern men brought up after the Civil Rights era work blacks and whites alongside each other, buy each other drinks after work, and then some of them (including a few blacks) get into cars and trucks with the Stars and Bars on their bumpers. I’m not saying racism is dead; far from it – there are examples within a mile of where I sit typing this. But I am saying that the symbolism you attribute to racism is substantially more complex, and in some cases completely divorced from any racist tendencies.
As a final comment, you might note that any thread where Miller, Shagnasty, John Mace, Sarahfeena, and I are all arguing on the same side comes damn close to being a national consensus, with only a fringe disagreeing with us. For what it’s worth.
Ha ha…a very good point. All the posts here by the folks you listed I am truly in complete agreement with. Very well-expressed by all (except for my post, which was kind of a throwaway…)
And for the second time tonight, in expressing myself I end up inadvertently offending you. Once again, sorry! “Don’t play devious semantic games” was an apostrophe aimed at Congress and one faction of judicial interpretation, not at you, despite the fact that it came in a response to your question.
Oh, now I see what you were saying. It’s that “you” again.
Anyway, I personally don’t think the US Congress is constitutionally authorized to regulate the details of marriage, but I wouldn’t at all be surprised if they decided to do so, as we’ve seen with things like DOMA. Maybe the SCOTUS would overturn such a law or maybe not-- it’s not obvious to me either way.
Yes, we do need fifty versions. In fact, we need to reverse the trend of making the central federal government stronger and stronger. The Confederates had one thing (and only one thing) right: States’ rights are necessary to keep America free. We are United, but we are united States, and the protection and strengthening of states’ rights are a very important safeguard from federal tyranny.
Federal tyranny is a good way to put it. One thing anti-states-rights people don’t seem to realize is that federal control can just as easily (perhaps more easily) work against progression than towards it. It may seem nice to have one law for the land, but really it only is if you agree with it. If you don’t agree with it, it’s a nightmare because there’s no way to escape it (such as moving to a place you find more in line with your thinking), and very little control in terms of changing it.
I think that the government should be less involved with marriage even on a state level. I don’t see federal involvement or uniformity as an improvement.
So long as marriage is relevant to federal matters (such as taxes, immigration, and the like) how can the federal government not have national-level laws or at least policies about marriage?
Say, for example, that Pat and Alex get married in Massachusetts, then move to Virginia. Virginia declines to recognize their marriage. What should the IRS do when they attempt to file a joint tax return?
Well, but if this variation by State stuff is to have any significance, then it must allow the various States to disagree as to what constitutes a legal marriage. If they’re all bound to recognize anything anyone else recognizes, then anything legal anywhere is legal everywhere, and there is absolute uniformity in what is recognized. So what does the federal government do when a couple is legally married in one state but that marriage isn’t recognized by the state they’re residing in? Or say some state decides to allow 13 year old girls to be wed into polygamous unions arranged by their parents - can the feds say ‘nuh uh, that’s fucked up and doesn’t count as a wedding for federal purposes’?
And what about marriages recognized by foreign countries? Does the INS recognize those? Some of them, but not others? On what grounds? Based on federal rules? Or do you think state rules should govern here as well? How would that work?
Decline to recognize the marriage. The marriage is only valid in the state of MA (or any other state that recognizes it). If they earned any of their money in MA, then they can file jointly for that portion with the IRS.
In my mind, the federal government can only respond to what the states do in a situation like this. I agree that the feds just have to work something out as regards to what money is due for a complicated situation where states differ. That part really doesn’t matter that much. The fact that the feds could conceivably have a hand in almost all matters doesn’t mean that we need to make the states an anachronism and fold everything that is important into federal control just because it would make the paperwork easier. I would prefer a solution where the feds back away from such matters entirely when they happen and recognize state sovereignty to those matters.
Well, you asked. Of course we could just get rid of the issue of marriage in the tax code, too. There are many, many things we could do to simplify it.
They’re also both residents of MA and VA for federal taxes. It’s almost always more complicated when you move from one state to another during the taxable year. I’ve done it several times. In fact, I’ve had to deal with 3 states before.
Then how about the immigration example? You’ve got a gay couple from Canada, a guy with three wives from Saudi Arabia, a man with a 10 year old wife from Eritrea, and married first cousins from Romania. Which count as married in the eyes of the INS? Should it be picking the name of a state out of a hat to see which rules will be applied?
There is a fundamental concept that some people seem to miss in these debates. Just because an organization like the federal government is an umbrella over other things like states does not make it a top-down hierarchy. The relationship between the federal government and the states in complex but the states are not a sub-government under the federal government. In many ways, the states are the top-level government for the citizen of that state and they are only tied to the rest of the country as a whole under the same constitutional umbrella. The federal government has taken on more and more over time but the whole concept was founded to tie semi-independent entities together the same way that the European Union was founded.
Just because there is an organizational structure above an entity (like France in the European Union), that does not mean that the higher one is the most important one or the one with the most power. If the feds have a problem with their forms because of what a state did, they need to adapt to it. They are not the top level government except in cases of Constitutional matters and they have to respond to the needs of its members.
I fully agree with Miller that we’re more likely to get decent legislation at the state level rather than at the federal level. But there’s another, more important point about these laws, and particularly about divorce laws.
Divorce laws are a wedge by which the government can get inside families and start legislating. When huge percentages of marriage end in divorce (as they currently do) then the laws let the government legislating inside a lot of families. Suppose the federal laws sided with putting children with a parents who doesn’t smoke over a parent who does. Then you’ve effectively legislated against smoking in all households with children. Every parents has a motivation to not smoke, on pain of possibly losing their kids. That’s not an isolated case; divorce law allows the government to boss people around on countless issues: employment, health care, education, …
A federal divorce law would then let the federal government get its fingers into all those parts of our private lives. That’s a price too high to pay just to get a slightly simplified tax code.
Once again, sorry! “Don’t play devious semantic games” was an apostrophe aimed at Congress and one faction of judicial interpretation, not at you, despite the fact that it came in a response to your question.