Wall Street Journal writes today on the Federal Marriage Amendment that I found interesting. They basically oppose amending the Constitution to prohibit gay marriages… but they *are* in favor of an amendment that prohibits Federal courts from interpeting the Constitution that way. The entire article is here, but here are the key points that interested me:
For his part, Mr. Bush has been accused of using the issue for campaign purposes, and no doubt he is listening to his conservative base. But let’s remember who made this a national issue. That was done by San Francisco Mayor Gavin Newsom, the Massachusetts Supreme Court and others who put their own personal agendas above current laws. It is revealing that in no case has gay marriage been sanctioned by a legislature, and that the courts, both federal and state, are filled with similar activist litigation.
This path, moreover, has been marked by disingenuousness all the way through. In last year’s Lawrence sodomy case, U.S. Supreme Court Justices assured us that it had no implications for gay marriage. But scarcely had the ink dried than the Massachusetts high court was invoking Lawrence to mandate gay marriage. Only a few years back, John Kerry attacked the Defense of Marriage Act (which was signed by Bill Clinton and says states do not have to recognize other states’ gay marriages) as “unconstitutional, unprecedented, unnecessary and mean-spirited.” Now Mr. Kerry invokes that law to justify his opposition to a constitutional amendment.
Likewise we see a number of born-again federalists, telling us to “leave it to the states.” We’re all for leaving it to the states. But most of those pushing gay marriage have no intention of doing so, at least if that means the democratic process. What they really mean is let’s stop all activity on a Constitutional amendment until the Supreme Court declares gay marriage to be a Constitutional right, in another version of Roe v. Wade.
The litigation all points in this direction. Most telling is Nebraska. In 2000, 70% of its voters approved a state constitutional amendment defining marriage as a union between a man and a woman and prohibiting civil unions or domestic partnerships. If activists really believed in leaving this to the states, it’s pretty clear Nebraskans have spoken. But this state amendment is being challenged by the ACLU, which hopes to get a federal judge to throw it out. The state’s attorney general testified in Congress that he expects the state to lose.
That sums it up nicely, I think. The ones who usually cry that this is an issue for the states are the ones pushing hardest for a Constitutional Amendment. The ones that are usually accused of appointing activist judges are now crying this is a states right issue – but only because they believe eventually they’ll get a Federal Court to declare gay marriage to be a constitutional right. And even when the states make their wishes known as in Nebraska, the ACLU sues to overturn it.
Oy. The Constitutional solution is that this should have been a states rights question from the beginning. The US Constitution specifically says that any rights not espressly given to the US Government are reserved for the States. The decision on abortion shouldn’t have been a Federal decision, but it was. Now the genie is out of the bottle, and the US government has been happily trampling States Rights for years. And while the people, either through direct voting or through their legislatures has never permitted gay marriage, and in most cases specifically outlawed gay activity of any sort, the courts have been “discovering” these rights and overruling the people and the legislatures.
It should have never gotten this far – the opposition is correct, this should have been an issue left to the States. Sadly, it is the same opposition that has made that impossible. That genie is never going to go back in that bottle.
Chasing the Wind 
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