My Gay Marriage Position
by P.A. Madison on August 12th, 2010
I have four emails this morning asking whether I accept gay marriage or if I don’t. The answer is no and not because I have anything against being gay. I am against gay marriage simply because it is yet another social change the court feels is its duty through judicial edict to force unwilling governments of the people to recognize.
Social changes should come naturally through republican means, such as assembly and petition for changing laws, not clever legal arguments through lawsuits.
Marriage is a State institution that belongs with the States and there is zero constitutional authority for a federal court to question or intervene. The Fourteenth Amendment’s first section is simply a nullity on State power much like impairing the obligation of contracts has always been a nullity. Did Congress and the court ever attempt to turn the prohibition of impairing an obligation of contracts into a new federal power over all private affairs because they could lead to impairing a contract?
No. Why should it be any different under the Fourteenth Amendment since both are a nullity and not a new federal grant of power? The problem with modern equal protection arguments is activists and judges confuses equal protection with equal rights.
Well, there you have it. PA Madison V modernity.
The US Con is SILENT on the issue of marriage. Therefor it is as he say ‘a state issue’.
My question for PA is:
Would a Central government Constitutional amendment banning gay marriage be unconstitutional ?
So where do the morality laws go in this unholy unions? Is this more of the “it’s illegal” but we look the other way because we are not racist?
You statements suggest that you must also believe that the Defense of Marriage Act is unconstitutional.
Marriage is a State institution that belongs with the States and there is zero constitutional authority for a federal court to question or intervene.
Actually, it’s a federal issue because only a federal ban on cloning and genetic engineering and same-sex conception using artificial gametes would work. State bans would be meaningless, do you agree with that? If one state allows same-sex couples to conceive together, then the country does. The nation couldn’t enter into international treaties that banned cloning and genetic engineering, because it would be legal in the US for everyone, even though only one state allowed the actual lab work necessary. Also the federal constitution protects the rights of the people to not be created in unethical procedures or circumstances, and the rights of all individuals to use their own genes to procreate. Those would both be infringed by same-sex conception, so it should be prohibited by a federal law. Just like with polygamy and racial segregation, the federal rights dictate state marriage laws.
That’s a response to your proposal, I’d be interested to hear your response to my response.
Very reasonable. My comment at the other post got buried, but I’d still be curious to know how far the principle goes. Returning to the ugly examples, I’d ask, does the 14th Amendment leave states the freedom to treat race (or gender) as qualifications for holding property? Can a state’s criminal code treat the murder of a white and a black man differently, provided the perpetrator’s race does not single him out for special punishment?
I tend to think the states are free to do all sorts of misguided and deeply offensive things (a reason why states have their own bills of rights), and I bring up these questions to test the boundaries of state power.
Maybe I’m misunderstanding you, but does that mean that you think that Loving was incorrectly decided?
As usual you are technically correct with your constitutional observations, but the sad truth is the court and most scholars just don’t care. Judicial activism that has far reaching social influence is the name of the game.
That is one deep explanation!