October 21, 2007
Rudy Promising to Ban Gay Marriage?
Tony Perkins, head of the Family Research Council, told The Hill Saturday that former New York City Mayor Rudy Giuliani (R) would support a constitutional amendment banning gay marriage.If this is true, it's disturbing on two fronts. First, it's disturbing, but not surprising, that Rudy would be willing to support increased federal control over family law. Second, it's disturbing that many evangelicals apparently want the same thing. With a few relatiely minor incursions by the feds over the years (chiefly relating to miscegenation), family law has always been the province of the individual states, and I daresay that setup has served us all pretty well over these last 200-odd years.
Perkins said Giuliani told him in a private meeting that if the Defense of Marriage Act appeared to be failing or if multiple states began to legalize same-sex marriages, then he would support the constitutional amendment.
Gabriel at Ace of Spades lays it out well:
First, [a constitutional amendment defining marriage] is a cavalier abandonment of federalism. Yes, I know that it's perfectly legal to ban gay marriage through a constitutional amendment. That doesn't make it any more acceptable to take the decision whether or not to allow gay marriages out of the hands of states.Like Gabriel, I have much less objection to the second proposal. To the extent I'd support any amendment, I'd likely support an amendment disclaiming a federal role over the marriage laws of the individual states.
"If multiple states begin to legalize" [Rudy will] just swoop in with a federal prohibition? That's disturbing for all the usual reasons. Now, something a little more nuanced--for example, exempting each state from recognizing the same-sex marriages of other states--would be less problematic because it would recognize states' choices. (Not that I would support that amendment either, but it assuages the federalism issue.)
Don't get me wrong. I'm not saying our hodge-podge of state laws doesn't allow for a little strangeness here and there. I'm a bit troubled, for example, by the idea that a 40-year-old adult can, in certain places, legally marry a 12-year-old child. A federal constitutional amendment defining "marriage" as "one man" and "one woman" would probably dissolve such marriages. A 12-year-old child is not a "woman" by any stretch. One can even debate, I suppose, whether anyone who wants to marry a 12-year-old can really be considered a "man." (In a similar vein, the question of whether the children of parents married before their eighteenth birthday will retroactively become illegitimate bastards may very well become a matter for the federal courts to decide.)
Of course, state law strangeness is not in question. The question is whether the time has come for federal courts to take a more active role in regulating the family laws of the states. We should ask ourselves whether it is time for federal judges to start divvying up who is, and who is not, qualified to be considered a spouse. What is and is not considered a "marriage" often determines the outcome of family law disputes, including child custody, child support, alimony, and wills and estates issues. Those who advocate making the definition of marriage into a federal question would do well to keep this in mind as they hand the power to define marriage over to the federal courts.
Yes, having fifty different definitions of marriage can be a little messy sometimes, and it does leave open the possibility for some strangeness, but if the people of California were to decide that two women can be married or the people of Utah were to decide that a marriage can involve more than two people, this doesn't keep me up at night down here in Texas. Even if I fnd their choices a bit disturbing on occasion, I can accept that situation if it means I can keep their meddling mitts off our laws and off my family. I'm pretty sure I wouldn't want the voters of California, Massachusetts and New York defining family law for the people of Texas.
For those who advocate a federal definition of marriage, I'd like very much to hear the thinking on where we need more federal regulation of family law, and why federal courts would do a better job overseeing family law than they've done overseeing the myriad other areas they've taken over from the states through the years.