# Senator Frist wants Constitutional Amendment banning gay marriage **URL:** \ **Category:** The BBQ Pit\ **Created:** [June 29, 2003, 8:04pm UTC](https://boards.straightdope.com/t/senator-frist-wants-constitutional-amendment-banning-gay-marriage/185211 "2003-06-29T20:04:51Z")\ **Posts on this page:** 3\ **Page:** 16
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [July 8, 2003, 10:35pm UTC](https://boards.straightdope.com/t/senator-frist-wants-constitutional-amendment-banning-gay-marriage/185211/301 "2003-07-08T22:35:43Z")
**Dewey** : First, an apology for my earlier hyperbole. It was not my intent to accuse you of that preacher’s attitude, but to use the strongest possible language to convey to you my impression of what your stance was being seen as by others, at least the vocal folks involved in this thread. (How do I know what a lurker is thinking?) It would be incorrect to say that “no offense was intended” – but it was by no means my intent to insult you as a person with strong jurisprudential convictions, but rather to figuratively hold up a mirror so that you could see what your words are being taken as. Second, I agre with you that Kennedy’s language was a disclaimer – but I think we disagree as to what exactly it disclaimed. My reading of it is, “We the majority are explicitly making clear that this decision does not address the question of gayu marriages or civil unions; we will decide that at another time when a relevant case comes before us.” It sounds to me like your reading of it is, “We are stating that this case is not a precedent for claiming the legality of gay marital unions.” The former to me is a classic narrow-grounds decision – “We’re addressing sodomy laws here, not civil unions; argue that case separately.” The latter is an absolute denial of a claimed right which would be a dictum-style sidebar to the case in question, and I don’t think it is borne out by the language Kennedy used. In other words, the majority is saying, “Maybe this autonomy thing implies a right to gay marriage/civil unions, and maybe it doesn’t – but that’s not what we’re deciding right now. Bring that case another time, and then we’ll consider whether this is precedent for it.” It’s typical O’Connor language, and Kennedy in his narrow-grounds mode, and I’ll bet you dollars to donuts that if we could see into Kennedy’s mind, we’d find that he wrote it that way to try to get O’Connor to sign on. Your thoughts? ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 8, 2003, 10:48pm UTC](https://boards.straightdope.com/t/senator-frist-wants-constitutional-amendment-banning-gay-marriage/185211/302 "2003-07-08T22:48:31Z")
> [@](#): > > \*Originally posted by Otto \* > **Whether you believe DOMA to be redundant is irrelevant to the question of whether you believe it passes constitutional muster. Please answer the question as asked. Thank you.** I thought I did answer the question. The DOMA, insofar as it just says “no state has to respect civil unions created by another state” is just reflecting the current interpretation of the full faith and credit clause. It’s constitutional so long as the current interpretation of the FFC clause remains good law. But it’s also utterly irrelevant because it adds nothing that isn’t present in FFC clause jurisprudence already. As for those components of the DOMA that relate to federal benefits conferred on married couples, it depends. The only real challenge to those provisions would be on equal protection grounds, and would only have to survive rational basis review. That’s a tough test to fail, so the act is likely mostly constitutional, but the analysis would have to take place on a benefit-by-benefit basis and thus a blanket “thumbs up/down” statement would be inaccurate. \*\* > [@](#): > > I can’t believe that you’re actually arguing against the constitutionality of every federal law ever passed which relates to marriage, marital rights, marital privileges, etc. And yet you hesitate to state whether you believe DOMA is constitutional.\*\* I did not argue against the constitutionality of federal laws that “relate to” marriage. I said the federal government lacked the constitutional authority to set the parameters for domestic arrangements, including marriage. There is a huge difference. The federal government lacks the power to determine what is or is not a marriage, what is or is not a valid adoption, what is or is not a valid divorce, or what does or does not make a child legitimate. There is nothing in the constitution that grants the federal government that power, and per the 10th amendment, those powers are reserved to the states. HOWEVER, the federal government can _recognize_ such things _in the exercise of its valid constitutional powers_. For instance, the federal government unquestionably has the power to levy income taxes, per Article I, Sec. 8, clause 1 and the 16th amendment. In the course of levying such taxes, it can distinguish between married and unmarried taxpayers. It can also distinguish between homeowners and renters, between ordinary income and capital gains income, and (if it really wanted to, subject to rational basis analysis) tall and short taxpayers. Understand? (One caveat: the federal government has basically unlimited authority over the District of Columbia and federal territories and possessions, so it _could_ define marriage for folks living in, say, Guam.) \*\* > [@](#): > > Um, well, yeah, that’s exactly what the Texas case hinged on. A judge granted a civilly united couple a divorce. The state attorney general intervened, stating that there could be no divorce because under Texas law a Vermont domestic partnership was not recognized. Would the AG have intervened had the Vermont couple been a couple joined in “marriage”?\*\* Yes. And he would have said, basically, that Texas is not constitutionally obligated to recognize Vermont’s definition of marriage. And he’d be right under current FFC jurisprudence. \*\* > [@](#): > > I contend that there is a much stronger argument in favor of requiring states under the federal constitution to recognize out-of-state marriages than there is to requiring recognition of legitimacy (um, by the way, isn’t legitimacy given strict scrutiny under the Equal Protection clause?) because the rights and responsibilities of marriage are extremely more critical as one travels from state to state than are those related to legitimacy. They are not strictly analogous, in fact I don’t think they’re even that close.\*\* Read the facts in _Olmstead_; it deals with the disposition of property located in another state, which is _precisely_ one of the concerns cited in defense of gay marriage. (Also FTR: legitimacy is subject to heightened-scrutiny review in equal protection cases, but _Olmstead_ is not an equal protection case; it is a FFC clause case. It does not deal with a state internally treating legitimate and illigitimate persons differently, but rather the question of whether another state must respect a state’s definition of legitimacy.) \*\* > [@](#): > > There is also a tradition, dating back before the founding of the nation, of recognizing marriages performed outside the boundaries of the colony/state, and even if subjected to rational review, failing to recognize SSM while recognizing mixed-sex marriage fails against equal protection. \*\* That tradition does not extend to recognizing marital arrangements which are radically different from those available in the target state. And you’re kidding yourself if you think such restrictions will fail rational basis scrutiny. \*\* > [@](#): > > In part to answer the lunatics…sorry, the Santorum/Frist Republicans who have been frothing for however long about the Parade of Horribles that the decision would unleash, and in part to address the Parade of Horribles raised in the briefs of idiots like AG Pryor. I don’t read the language as stating that the logic of the case does not and may not apply to SSM cases, merely that the issue of SSM was not before the Court. \*\* Well, if that line is in there to address the “parade of horribles,” doesn’t that line indicate to some degree that the court views extension of constitutional protection to gay marriage in somewhat of a dim light? You’re contradicting yourself here. You’re claiming the court is saying, on the one hand, “Mr. Frist, this case won’t be used to protect the bad, bad things you’re opposed to, including gay marriage” while at the same time saying “the logic of this case might lead to constitutional protection for gay marriage.” Well, which is it? You can’t have it both ways. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [July 8, 2003, 11:01pm UTC](https://boards.straightdope.com/t/senator-frist-wants-constitutional-amendment-banning-gay-marriage/185211/303 "2003-07-08T23:01:52Z")
> [@](#): > > \*Originally posted by Polycarp \* > \*\*Second, I agre with you that Kennedy’s language was a disclaimer – but I think we disagree as to what exactly it disclaimed. My reading of it is, “We the majority are explicitly making clear that this decision does not address the question of gayu marriages or civil unions; we will decide that at another time when a relevant case comes before us.” It sounds to me like your reading of it is, “We are stating that this case is not a precedent for claiming the legality of gay marital unions.” The former to me is a classic narrow-grounds decision – “We’re addressing sodomy laws here, not civil unions; argue that case separately.” The latter is an absolute denial of a claimed right which would be a dictum-style sidebar to the case in question, and I don’t think it is borne out by the language Kennedy used. In other words, the majority is saying, “Maybe this autonomy thing implies a right to gay marriage/civil unions, and maybe it doesn’t – but that’s not what we’re deciding right now. Bring that case another time, and then we’ll consider whether this is precedent for it.” It’s typical O’Connor language, and Kennedy in his narrow-grounds mode, and I’ll bet you dollars to donuts that if we could see into Kennedy’s mind, we’d find that he wrote it that way to try to get O’Connor to sign on. > > Your thoughts? \*\* I think that your interpretation is belied by the surrounding text. Or do you also think Kennedy was saying “Maybe this autonomy thing implies a right to prostitution, and maybe it doesn’t – but that’s not what we’re deciding right now. Bring that case another time, and then we’ll consider whether this is precedent for it”? [Previous page](https://boards.straightdope.com/t/senator-frist-wants-constitutional-amendment-banning-gay-marriage/185211.md?page=15)