Tuesday, June 28, 2011

New York probably gets DOMA on the Supreme Court docket

The Constitution is singularly the greatest document that has ever been written and has resulted in more good for more people around the world than any other single document of man in history. It’s not however perfect. It has an amendment process that allows citizens to make bad choices – see the 16th and 17th Amendments, both enacted in the midst of a progressive frenzy in 1913 – but such changes require the active participation of a large segment of the population.

There is however a move afoot to change the Constitution in a different way. Article Four of the Constitution says: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. This is the part of the Constitution that says if you’re born in one state you can take your birth certificate to another and get a driver’s license, or that you can drive in one state with a driver’s license from a different state. It also of course is what allows persons married in one state to be recognized as married in another.

It has not been much of an issue in modern times until states started allowing same sex marriages. Sometimes done via legislation, more often than not the change has occurred as the result of judicial action. In no case where states have given voters a choice has a majority voted for same sex marriage. This includes California, where Proposition 8 banning same sex marriage passed but was then ruled unconstitutional by a federal judge.

The Constitutional question comes into play with 1996’s Defense of Marriage Act, or DOMA, which explicitly states that no state shall be forced to recognize a same sex marriage contract from another state. It also prohibits the federal government from recognizing such compacts. This is where changing the Constitution comes into play. DOMA opponents read the first sentence of the Full Faith and Credit clause and suggest DOMA is unconstitutional. The problem however is that they simply choose to pretend the second part of the clause does not exist… but it does, in black and white: “And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The whole of the Full Faith and Credit Clause was not some afterthought. The Founding Fathers included in the body of the original Constitution, a place where you will not even find the various elements of the Bill of Rights such as freedom of speech or religion. This should demonstrate exactly how important contracts were to the Founders in that they wanted citizens of the United States to feel confident those contracts would be valid throughout the country. The states however remained sovereign, and could not be forced to accept contracts that violated their own laws under Full Faith and Credit. When laws were written banning interracial marriage, it was the Equal Protection clause that provided relief, not Full Faith.

The Full Faith and Credit clause of the Constitution was not crafted as a fulcrum to allow activists to foist on the nation policies that could never be implemented on their own. The federal system gives states the right to define marriage virtually any way they want. It does not however give those states the right to force other states to agree with them. If the definition of marriage can be changed from one man to one woman to two men or two women, why stop there? Utah could resurrect polygamy and the other 49 states would have to recognize it. California might allow for the members of a commune to marry one another simultaneously. Now that you have California and New York lined up against the almost 80% of the states who explicitly ban same sex marriage, DOMA is likely an issue the Supreme Court will have to take up.

If 21st century activists want to change the way America deals with marriage they can do so, but they can’t just wish away half of the Full Faith clause. They might want to go back and read the playbook of their progressive brethren from the last century. The Amendment process is tough to get through, but that’s by design. Big changes require big buy in, and changing marriage is definitely a pretty big change.

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