Gay marriage? Why not?
Posted: Fri Jul 25, 2003 2:53 pm
http://www.madison.com/wisconsinstatejo ... /53156.php
Don't trivialize the Constitution
2:49 PM 7/19/03
You don't have to be in favor of allowing gays to marry to believe that the proposed Federal Marriage Amendment to the U.S. Constitution would set a bad precedent.
In May, members of Congress proposed amending the Constitution to include "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the Constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
We leave it to the legal experts to determine the ramifications of that second sentence; squabbles have already erupted over whether it would or wouldn't prohibit states from granting benefits such as health insurance to people (both heterosexual and homosexual) involved in domestic partnerships.
What is most bothersome about the proposal is: It trivializes the Constitution.
For all the years this nation has been in existence, regulating marriage has been the job of state government. The Constitution says nothing about marriage, but it does say that all duties not specifically assigned to the federal government are left up to the states. Up until now, that has meant that state governments get to decide who can get married.
This has, naturally, produced 50 different sets of laws (51, if you include the District of Columbia.)
In most states, the youngest age at which a person can get married even with parental consent is 16 - but in Kansas, Massachusetts and Oklahoma, girls can get married at age 12 (14 for boys) if they have their parents' permission. Kentucky, on the other hand, doesn't care if the kids' parents say OK: It's 18 to get married period. Twelve states - Alabama, Colorado, Kansas, Iowa, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah and D.C. - recognize common-law marriages, but the other 39 states do not.
The point is, the effect of this hash of laws on the institution of marriage has been - nothing. Oh, marriage has changed a lot in the last 200-plus years, but state marriage laws have had little effect on those changes.
Until Vermont, that is. There, the state Supreme Court ruled that Vermont's ban on gay marriage was unconstitutional, violating the state's equivalent of the U.S. Constitution's equal protection clause.
This struck fear into the hearts of gay marriage opponents everywhere - because the federal equal protection clause was the basis for the U.S. Supreme Court's 1967 ruling that states' bans on interracial marriage were unconstitutional. Thus the Federal Marriage Amendment, which tries to stop the states from extending to gays the same civil rights protections the states grant to other minorities.
No doubt the thought of gay marriage makes a lot of people uncomfortable - but so did interracial marriage 50 years ago. And look what's happened since then: Again, a big, fat, resounding nothing. The number of interracial couples has soared, although it is still a tiny percentage of all marriages. The institution of marriage survived, and so did U.S. society.
Protecting the "sanctity" of marriage by banning gay unions is as ridiculous as protecting marriage by making adultery a federal crime. There can be no doubt that cheating spouses do more harm to the institution of marriage, not to mention their families, than letting that quiet gay couple down the street get married, but you don't see any push for a constitutional amendment to ban extramarital affairs.
At any rate, amending the U.S. Constitution to prohibit gay marriage is like using a cannon to kill a fly. The nation has survived for 227 years without the federal government involved in the marriage business, and now is no time to start.
Copyright © 2002 Wisconsin State Journal
Don't trivialize the Constitution
2:49 PM 7/19/03
You don't have to be in favor of allowing gays to marry to believe that the proposed Federal Marriage Amendment to the U.S. Constitution would set a bad precedent.
In May, members of Congress proposed amending the Constitution to include "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the Constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."
We leave it to the legal experts to determine the ramifications of that second sentence; squabbles have already erupted over whether it would or wouldn't prohibit states from granting benefits such as health insurance to people (both heterosexual and homosexual) involved in domestic partnerships.
What is most bothersome about the proposal is: It trivializes the Constitution.
For all the years this nation has been in existence, regulating marriage has been the job of state government. The Constitution says nothing about marriage, but it does say that all duties not specifically assigned to the federal government are left up to the states. Up until now, that has meant that state governments get to decide who can get married.
This has, naturally, produced 50 different sets of laws (51, if you include the District of Columbia.)
In most states, the youngest age at which a person can get married even with parental consent is 16 - but in Kansas, Massachusetts and Oklahoma, girls can get married at age 12 (14 for boys) if they have their parents' permission. Kentucky, on the other hand, doesn't care if the kids' parents say OK: It's 18 to get married period. Twelve states - Alabama, Colorado, Kansas, Iowa, Montana, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, Utah and D.C. - recognize common-law marriages, but the other 39 states do not.
The point is, the effect of this hash of laws on the institution of marriage has been - nothing. Oh, marriage has changed a lot in the last 200-plus years, but state marriage laws have had little effect on those changes.
Until Vermont, that is. There, the state Supreme Court ruled that Vermont's ban on gay marriage was unconstitutional, violating the state's equivalent of the U.S. Constitution's equal protection clause.
This struck fear into the hearts of gay marriage opponents everywhere - because the federal equal protection clause was the basis for the U.S. Supreme Court's 1967 ruling that states' bans on interracial marriage were unconstitutional. Thus the Federal Marriage Amendment, which tries to stop the states from extending to gays the same civil rights protections the states grant to other minorities.
No doubt the thought of gay marriage makes a lot of people uncomfortable - but so did interracial marriage 50 years ago. And look what's happened since then: Again, a big, fat, resounding nothing. The number of interracial couples has soared, although it is still a tiny percentage of all marriages. The institution of marriage survived, and so did U.S. society.
Protecting the "sanctity" of marriage by banning gay unions is as ridiculous as protecting marriage by making adultery a federal crime. There can be no doubt that cheating spouses do more harm to the institution of marriage, not to mention their families, than letting that quiet gay couple down the street get married, but you don't see any push for a constitutional amendment to ban extramarital affairs.
At any rate, amending the U.S. Constitution to prohibit gay marriage is like using a cannon to kill a fly. The nation has survived for 227 years without the federal government involved in the marriage business, and now is no time to start.
Copyright © 2002 Wisconsin State Journal