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July 20, 2011

Hey, Let's Freaking Push a Marriage Amendment That Can Actually Pass

Here's the current version:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

How's that workin' out? It's not. It's base-bait. It gets the bait all excited. And it goes nowhere.

It's intended to go nowhere. It's intended to get the base excited, while going nowhere. This gives those who endorse it a two-fer:

1, The base gets excited.

2, Moderates who are uncomfortable with this do not vote against the people who supposedly endorse it, because they are reassured by that part about "it's going nowhere."

People are being played. The political class is pushing a document that serves all of their interests. Those in red areas can endorse it without political consequence. And those in blue areas can oppose it without political consequence.

And nothing happens. Everyone's base gets fired up and the donations flow in, but there's no actual movement on the issue.

And this is a feature, not a bug.

Let's drop the base-bait crap and push an amendment that can actually pass -- and if it doesn't pass, it will require Democrats (and socially "moderate" Republicans) to take an unpopular position.

Here's my proposed more modest amendment that can actually pass (or at least put Democrats on the defensive, big-time). It just omits the first sentence and changes the second a little:

1. The laws of marriage shall be enacted into law by the normal and usual legislative process only, or by explicit amendment to a state constitution expressly creating a new law of marriage.

2. Neither this Constitution, nor the constitution of any State, nor the laws of any foreign jurisdiction, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman.

3. The law of marriage in one state shall not be construed to create a right to marriage in another state.

Note that this pretty much just jettisons the attempt to resolve the issue for all of the country by amendment, at the federal level. It permits gay marriage -- so long as it's a genuine legislative law (or secured via explicit amendment -- none of this "penumbras and emanations" crap). But it stops all courts from imposing it.

And note well: It is mostly the courts who have forced this on the states, even when a state has acted "legislatively" to create a right to gay marriage. As was said in NY: Hey, at least the legislature did this before the courts forced them to.

This amendment would stop all that "Let's beat the courts to the punch" thing. And if the citizens of states genuinely want gay marriage, they can pass it, legislatively, or by express amendment to the state constitution... democratically.

This amendment respects federalism, and not just for gay marriage states, but for non-gay marriage states -- it enshrines DOMA's provision barring a gay-marriage couple from one state forcing the institution on another state by lawsuit (based on the Full Faith and Credit clause).

Further, it can pass.

Further, reluctant Republicans -- who are covertly in favor of gay marriage, but claim, publicly, to be opposed -- can no longer use the "federalism" dodge to excuse their inaction on the issue.

Further, Democrats will be hard-pressed to oppose this. Here's a little insight: People like getting to vote on things. They dislike having the power to vote taking away from them.

I was told this by a pollster. It is a common practice, for example, to seek to stop new buildings being built by creating a law stating that all new buildings must be voted on specifically by the public. This is a method that people who already own buildings -- and don't want their property value diluted by competition of new buildings -- use to keep new buildings from going up. And it's a tough law to fight, because people like the idea of getting a vote on everything.

It's a hard case to make that they shouldn't get a vote.

Anyway, I consider the current FMA to be some conservative fanservice which by design has no chance of passage and is an easy vote either way. It's an easy "yea" vote, as those who vote for it don't have to worry about moderates voting against them, because the moderates know it's just conservative fanservice not going anywhere.

It's an easy "nay" vote, because people can always say "federalism" and "state's rights" to justify their nay. Even Democrats do this -- this is their favorite dodge.

But what if a marriage amendment specifically did respect state's rights and federalism?

What would be the argument against it then, apart from the obvious -- that a lot of people actively desire the courts to impose the institution on reluctant citizens?

Let's stop the posturing and get something done. Let's push an Amendment that can actually pass.

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posted by Ace at 01:36 PM

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