Saturday, July 10, 2010

Gay Marriage Cases Put Conservatives In A Bind

In a craftily reasoned decision, US District Judge Joseph L. Tauro ruled recently that the federal Defense of Marriage Act--passed in the Clinton Administration--was unconstitutional for two reasons--the first, he finds that DOMA is a violation of the 10th Amendment, that darling amendment of the Tea Party Movement that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" (which the Tea Partiers are using in their objections to healthcare legislation).  In the second sense, Tauro found that DOMA was a violation of the Constitution's equal protection clause.

In the first case, this puts a large swath of the conservative movement in a bit of a bind.  The constitution is silent on marriage--seemingly then sending the question to the states for legislating--at least according to the 10th Amendment.  Tauro's ruling basically says that regulating marriage is a state issue and that Congress overstepped its bounds.  I tend to agree with Tauro on this one. 

The equal protection portion of the ruling is also a bit problematic, and will likely be legislated elsewhere (as in the case before the California Supreme Court on whether that state's ballot measure defining marriage violates the federal equal protection clause).  This will DEFINITELY get to the supreme court at some point, and the ruling is likely to anger lots of people.

So here's how I see it.  The federal government has no say in marriage, which is a state issue.  States have decided to have a patchwork of laws dealing with marriage which are different from each other.  The federal Constitution however, contains two provisions--the Equal Protection Clause and the Full Faith and Credit Clause--which seem to bind states to honor not only their own law on marriage--but every other state law on marriage too.  See why this is getting confusing?....

What to do about this?  Remove any and all government role from marriage--state, local or federal.  Make marriage into a cultural and religious institution.  Remove any and all legal benefit or exclusion that flows from marriage.  Amend standard contract law to cover most of what's lost, and then enact laws at the appropriate level to deal with the rest. 


Ghost of Halloween Past said...

"Make marriage into a cultural and religious institution." YES!

But, how then would we address/ replace the currently-shared benefits of family partnership (health insurance, life insurance, pensions, etc.) when raising families often requires one parent /partner or the other to manage the home/children (which doesn't provide salaries or those corporate benefits) while the other works in an environment that does provide?

(Speaking as one of two working parents who would have -- if it had been financially feasible for us to subsist on one salary -- have chosen for one or the other of us to remain home with our child for some significant length of time.)

The Conservative Wahoo said...

Designated beneficiaries.

Ghost of Halloween Past said...

Sounds like a solution. Any downside?

The Conservative Wahoo said...

Well, yes. Though others who believe more strongly in the argument can make it better. Goes sorta like this. Society has a stake in encouraging an atmosphere in which its replacement workers and citizens are raised in positive circumstances. A nuclear family being among the structural aids to this end, the government has an interest in encouraging and fostering marriage.

If you believe this, and then if government gets out of the marriage encouraging (and regulating) business, then you would predict that "marriage", even as a social/religious construct, would decline--and with it, there would be a decline in the larger culture.

Honestly, this is an honorable and ancient argument. I don't make it very well.

Also, governments have been very pro marriage as a way of bringing order to chaotic inheritance and property laws--See, Romans.

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