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Wednesday, July 30, 2003

Posted by Jake - Bush wants marriage reserved for heterosexuals - Jul. 30, 2003

Andrew Sullivan is befuddled by Bush's statements and frankly so am I. Don't get me wrong. I really don't have that much of a problem with gay marriage. I don't really think it will be any more or less successful than straight mairrage. But what perplexes me about Bush's statement is that if you wanted to prohibit gay mairrage, you would need to take further action.

As Andrew Sullivan points out, however, gay mairrage is pretty much prohibited as is. We have the Defense of Mairrage Act 1996 which codifies mairrage as between a man and a woman and says that states don't have to honor gay civil unions from other states. In this context, any state law or decision, including Massachusetts, enshrining gay mairrage is bound to be struck down.

I agree with Bush if he is trying to cut a middle way through this mess. He can't piss off the social conservatives too much (in spite of how much I would like to). But I don't see how this does that. Is he going to push for a constitutional amendment? I hope not.

James -- That assessment of the so-called "Defense of Marriage Act" (Public Law 104-199) is a misunderstanding of federalism. The law says that for Federal purposes, marriage is between a man and a woman. For instance, Social Security benefits will not go to a same-sex domestic partner. It also says that no State is required to recognize the same sex unions of another state. IF VT allows two women to marry, and then they move to New York, New York State is under no obligation to let them file their taxes as spouses. I have not read the full text of the law, but from the CRS summary (which are usually pretty comprehensive), it doesn't sound like there is anything in the law that would let Federal officials strike down a State's recognition of a same-sex union.

Jake -- I agree that DMA was intended to have that effect, but the issue might still be in play for the following reason.

It would appear at least on the surface that this part of the law is a violation of the "full faith and credit" clause of the Constitution. Critics of this line of reasoning then respond that Congress has the ability to regulate by the "Commerce" clause, to which their opponents retort that because homosexual mairrages would be treated fundamentally differently than heterosexuals it is a violation of the equal protection clause 14th Amendment. A sticky wicket made no less sticky because everything I read in the news about this law was by and large wrong.

Here is one summary of the law that explained how Congress was trying to get around the "full faith and credit" clause:

The first substantive section of the bill is an exercise of Congress'
power under the "Effect" clause of Article IV, section 1 of the
Constitution (the Full Faith and Credit Clause) to allow each State (or
other political jurisdiction) to decide for itself whether it wants to
grant legal status to same-sex "marriage." This provision is necessary
in light of the possibility of Hawaii giving sanction to same-sex
"marriage" under its state law, as interpreted by its state courts, and
other states being placed in the position of having to give "full faith
and credit" to Hawaii's interpretation of what constitutes "marriage."
Although so-called "conflicts of law" principles do not necessarily
compel such a result, approximately 30 states of the union are
sufficiently alarmed by such a prospect to have initiated legislative
efforts to defend themselves against any compulsion to acknowledge same-
sex "marriage."

This is a problem most properly resolved by invoking Congress' authority
under the Constitution to declare what "effect" one State's acts,
records, and judicial proceedings shall have in another State. Congress
has invoked this authority recently on two other occasions; in the
Parental Kidnaping Prevention Act of 1980, which required each State to
enforce child custody determinations made by the home State if made
consistently with the provisions of the Act; and in the Full Faith and
Credit for child Support Order Act of 1994, which required each State to
enforce child support orders made by the child's State if made
consistently with the provisions of the Act.

Lord only knows if the Supreme Court would by that reasoning. I think the possible fuzziness in the interpretation of the "don't have to worry about other states" part of the law led Congress to add that mairrage is between a man and a women. This statement if taken to the fullest degree would render the "don't have to worry about other states" part irrelevant, making this a very weird law. Not even to go into my question about what the Federal purposes as opposed to the State purposes of mairrage are. What the Supreme Court is going to do with the DMA remains to be seen.

However, whatever Mr. Sullivan's apparent misread of the law, I stand by my assertion from the later post that Bush shouldn't push from an amendment.


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