Andrew Hagen

MSNBC gives an informative and fair summary of the gay marriage issue. (*)

Now that the constitutional amendment to protect marriage from being redefined by judges has stalled for the moment (†), the focus shifts for the moment to the states. There are many efforts underway in the many states to both advance and stop gay marriage. Stateline.com is tracking the situation in each state. (‡)

The marriage protection amendment will remain an issue until it passes into law or is no longer needed.

Inevitably, should the marriage protection amendment fail to pass, the US Supreme Court will find that gay marriage is a right protected in the Constitution. The efforts of the several states to defend marriage will fall before the will of a handful of judges. To avoid what otherwise will be a certainty, defenders of marriage will have to keep petitioning the Congress for the protective constitutional amendment.

A possible alternative is a legislative solution such as denying federal judges appellate jurisdiction in these cases. That’s worth a try.

Ultimately, this will come down to a showdown, however, between the executive and legislative branches of government on the one side, and the judicial branch on the other. Most likely, neither side will budge. The resulting conflict will be harmful as our carefully mediated system of separation of powers and the judicial veto will all come into question. Indeed, what may be brewing in the overall Culture War is a struggle over the legitimacy of the Constitution itself. The Roman republic fell after about 500 years. Without vigilance, our constitutional republic may fall well before landmark is reached.

The proposed, widely-supported marriage protection amendment states:

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.

Senators Kerry and Edwards did not participate in the procedural vote that kept the amendment off the Senate floor. The effort to bring the amendment to the floor lost 48–50 votes, with a simple majority needed, and 67 votes needed to pass the amendment.

A list of how each senator voted is available. (§)

Update: 17 July 2004. Joshua Baker makes the case that DOMA will not survive without some propping up. (**) To summarize, the pressure for a single, national definition of marriage is enormous. A scheme where marriage is radically different from one state to another—as would be the case if Massachusetts continues to have gay marriage but other states do not—is a scheme unlikely to stand for long. Thus, DOMA by itself will not endure.

Historically, America went through all of this back in the 1800s, when the Mormon Church and Utah were required to ban polygamous marriages as a condition for Utah’s statehood. Minor differences in marriage law from state to state can be sustained over time, but not major differences in the definition of marriage itself.

This entry was posted on Friday, July 16th, 2004 at 02:52 and is filed under Marriage. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.