A Federalist Marriage Amendment

On Tuesday, June 6 the Senate will vote on a constitutional amendment defining marriage as between one man and one woman. I agree with the propriety of an amendment to the constitution regarding marriage. I disagree with and oppose the specific amendment before the Senate, and urge its rejection. Instead, I propose an amendment based upon principles of federalism.

Our founders created a federalist system because they recognized that allowing the heterogeneous states to retain much of their sovereignty was the only practical mechanism through which a union of those states could be preserved. As David Gelernter points out, federalism designs "a vast garment for America that hugs where it should hug and stretches where it should stretch......federalism accommodates profound national disagreement by allowing each state to tailor the local climate to suit itself."

As we have seen with abortion and Roe v. Wade, creating a rigid nationalized standard incubates a bitter sense of polarization within the country. By taking the issue of abortion out of the province of the individual states the ability for them to have their differences but live within one union harmoniously was obliterated.

Prior to Roe the good people of Vermont could broadly allow abortion within their state while the good people of South Dakota could mostly restrict it. After Roe no such system has existed. Every vacancy on the Supreme Court has turned into a fractious battle between pro-life and pro-choice activists. No longer allowed to simply disagree and pass divergent laws which reflected their own values within their respective states, Americans must now fight with one another to have their own view accepted as the national standard.

To preclude this from happening with marriage I support a federalist constitutional amendment containing two provisions. The first would state that gay marriage can only be legalized by a vote of the state legislature or by popular referendum within every individual state, not by a ruling from that state’s supreme court. The second provision, to make the first provision valid, would carry an exception to the Full Faith and Credit Clause of the constitution.

Article IV, Section 1 dictates that "[f]ull faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." If states are to be allowed to decide whether or not their own state will recognize homosexual marriage then an exception to this clause must be passed in any amendment granting them that authority. Without said exception the amendment’s effect would be meaningless. A homosexual couple could get married in a state recognizing gay marriage and then move to a state that does not recognize gay marriage and the latter state would be constitutionally obligated to recognize that marriage; effectively nullifying their power to decide whether or not they will legally recognize gay marriage.

Allowing the states to define marriage via their own individual terms will prevent the distasteful acrimony and national polarization that has accompanied the issue of abortion since Roe. Instead of having to accept one national standard that may or may not reflect the mood of the state, the good people of South Dakota will not be forced to accept the views and values judgments of the good people of Rhode Island, and vice-versa. They, and the other forty-eight states, will be allowed to create their own definition. A federalist marriage amendment will allow all of us to live together peacefully by allowing us to have our differences.