Sunday, June 20, 2004

Is gay marriage a federal issue?

Where does one start when contemplating a Constitutional tune-up? Or would overhaul be more apt a description for this forum? Think I’ll opt for overhaul. Why not start with the question of gay marriage? The winds of constitutional amending activity are certainly gaining strength regarding this issue. What questions should we ask before making a decision regarding such a fundamental change to the most basic of all our laws? And then, we even have to seek answers to our own questions. This is a messy process. But tarry we must not. The clock’s running.

The first would certainly be whether or not this issue is of such a scope and nature as to be appropriate for constitutional amendment consideration. After all, the vast majority of legal issues are adjudicated without resorting to amending the Constitution. Laws governing marriage are at the state level and have been ever since the beginning of the Republic. Why should it even be a federal issue?

Well, it’s a federal issue mainly for two reasons. One is that the “Full Faith and Credit” clause may force states not wishing to recognize gay marriage to do so upon such recognition, by whatever means, of gay marriage in another state. Living, as I do, in Michigan, where a majority of my fellow Michiganders (There’s something requiring amendment!) oppose gay marriage, I and all others living here may be forced to accept the decision of the Massachusetts Supreme Court imposing such arrangements upon that Commonwealth. Perhaps they have it coming in the state where Lizzie Borden got away with chopping up her momma and her poppa, but why should that impose an obligation upon those not inclined to accept it and living a fair number of leagues to the west? I don’t think it should. There is a difference of opinion amongst the legal scholars and pundits as to whether or not full faith and credit would or should apply in this instance. Well, does it? We won’t know until if and when – I should probably leave out the “if” – our noble Supreme Court justices - Olympians to use Robert Bork’s very descriptive term – take it upon themselves to bless us with their wise and omniscient judgment. In the meantime, we’ll have gay marriage issues springing up all over the map like mushrooms after a rain, with controversy, protest and rage rampant across the country. This is really a great way to run the Republic. The process has already begun. You may follow its progress daily by means of the myriad of opinion and reporting easily found with a simple Google search. This seems much less like politics and law than it does a spectator sport.

Secondly, and it’s about time I got to why it’s a federal issue in the first place, is that everything, or most everything, is nowadays a federal issue. I cannot imagine that there would be no one who would raise the issue of their “civil” rights being violated by being denied a license to marry a person of the same sex. Even if the issue is brought before the Supremes on the basis of full faith and credit, it doesn’t mean that a decision would be based on that doctrine. The Olympians could hardly so constrain themselves and thus refuse to broaden the issue by not discovering somewhere within the arcane recesses of the Constitution a “right” to self-fulfillment through the vehicle of gay marriage. Federal judges seem little inclined to restrain themselves so I imagine that is why they little expect others to do so. But others’ lack of discipline not often assumes the force of law. Law imposes constraint upon the actions of those others, but no such constraint do judicial activists impose upon themselves. They are thus a law unto themselves. And when was the last time one was impeached and hauled out by his or her ear? If there ever was a breakdown in the separation and balance of power between the three branches of the federal government, it’s the obsequious obeisance given the Judicial by the Legislative and Executive branches. Once the court speaks, the others fall silently into line. This is to me the most egregious of the many forms of political pusillanimity exhibited by our esteemed leaders and representatives. If the Supreme Court says it, it must be so. Talk about passing the buck!

Next time: Why gay marriage is not a “rights” or “discrimination” issue.


Post a Comment

<< Home