Progressive. Queer. Feminist. Opinionated.

Tuesday, June 06, 2006

"Republican Right Wing 2006 Electoral Strategy Amendment"

That's what Fox News quotes Ted Kennedy calling the proposed Marriage Protection Amendment. As Harper points out in her earlier post, yesterday the President gave a huge anti-same-sex-marriage speech, and while certainly the most publicized, it was by no means the only discussion going on in DC.

CSPAN Radio (accessible by people in the DC metro area and by those who have satellite radio) was just chock-a-block full of the gay yesterday, largely because the proposed amendment is coming up for a Senate vote on Wednesday (or today -- sources vary), and everyone wants to get their two cents in. Why the furor? Well, it's rather astonishing that the amendment's being brought up right now, since apparently no one's really expecting enough votes to get the amendment passed. And the White House itself is divided on the subject (rare, these days), with Cheney's (2004) point of view being that "People ought to be free to choose any arrangement they want. Traditionally that's been an issue for the states. . . . That would be my preference," and Laura Bush quoted as saying that "I don't think it should be used as a campaign tool, obviously."

Except, well... frankly, everyone's looking at the timing of this Gay Extravanganza and wondering how much this sudden outburst of "traditional values" has to do with the midterm elections and the GOP's floundering approval ratings. Even conservative groups like The American Family Association of Michigan are coming out and saying, "Increasingly, social conservatives expect real action, not just politically timed attempts to motivate and organize the base." Add that in with the other amendment being voted on this week ("Anti-flag-burning! You miserable old bitch, how you been since we saw you last? Still stepping out with the Pledge of Allegiance's 'Under God'?"), and it just seems like so much political pandering.

So the amendment probably won't pass, which is all well and good, and if the President isn't pandering and he truly thinks this is a massively important issue then he chose a really bad time to make mention of it -- but what does this actually mean to us poor queers stuck watching this stuff from the outside?

Frankly, I'll stick with what I've always said: You can take away my civil rights, but you can't take away marriage. If we're talking historical institutions, technically (if I wished to appropriate other people's cultures willy-nilly) I could jump over a broom with my fiancee and lo! we'd be married! Taking away my ability to legally visit her in the hospital won't stop us from being married -- no one can stop that but ourselves.

Listening to CSPAN radio led me to this rather fabulous article by Dale Carpenter, associate professor of law at the University of Minnesota Law School. In it he gives a point by point explanation of why introducing a constitutional amendment banning same-sex marriage is a Bad Idea -- and to his credit, he doesn't harp on the issue of bigotry and discrimination, which would (with many folks) instantly color his argument with big ol' rainbow stripes. But the argument he's presenting -- that this amendment would be anti-democratic, anti-federalist, and that "A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it, on grounds of federalism, confidence that opponents will prevail without an amendment, or a belief that public policy issues should only rarely be determined at the constitutional level" -- is one that's good enough to convince even staunch anti-gay-marriage proponents who nonetheless still wish to uphold the values of our political system.

There are four main arguments against the FMA [Federal Marriage Amendment]. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nation-wide same-sex marriage unlikely for the foreseeable future. [...]

Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. [...]

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short on ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.

Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.


Blogger Publius said...

Gay marriage is a state issue and should be decided by the individual states. And if one state wants gay marriage, fine, but that does not mean another state should have to accept it as well. If this is somehow a tricky legal situation, then the government should pass an Amendment either way. But discussing and no action only gets people upset and shows that politicians are more interested in doing things to get them elected than in actually getting anything done.

12:22 AM


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