The marriage amendment: President Bush opens Pandora's box

President Bush used his Saturday radio address to announce his support for a constitutional amendment defining marriage in the United States as the union of a man and a woman.

He pointed out that state laws banning same-sex marriage have been overturned by the courts, and that the federal Defense of Marriage Act, which says the states don't have to recognize the legality of same-sex marriages performed in another state, could be overturned as well.

About this, there can be no doubt that he is correct. Whether you support or oppose the legality of same-sex marriage, it is a fact that the only way to ban same-sex marriage in the United States is to amend the U.S. Constitution.

That's because Article IV, Section 1 says this: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

That means if Massachusetts says you're married, you're married in the whole United States. The Supreme Court would have to willfully disregard the plain meaning of the English language to interpret the Constitution any other way.

Of course, it wouldn't be the first time.

People who complain about judicial activism on the issues of abortion and gay marriage may be surprised to learn that judicial activism is responsible for a long list of rights that they might not be so willing to give up. Prior to 1925, when the "incorporation doctrine" first glimmered in the eyes of "activist" Supreme Court justices, the states had the power to restrict freedom of speech, freedom of the press, and freedom of religion. They had the power to set their own standards for police searches and they were not required to provide criminal defendants with jury trials or defense attorneys. There was no right to remain silent, in the police station or in the courtroom.

The desegregation decisions also were the product of judicial activism, which reinterpreted the 14th Amendment to prohibit separate schools for children of different races. The 14th Amendment was passed in the 19th century by men who are quoted in the congressional record reassuring each other that it will never interfere with the practice of racial segregation in the schools of the Northern states.

So if we're going to go down the road of amending the Constitution to undo judicial activism, we'd better pick out the rights we want to keep and amend the Constitution to lock them down before something bad happens to them.

We should begin with an amendment to ban racial and gender discrimination, so we can stop worrying that basic equality rights will be interpreted out of the Constitution the way they were interpreted into it.

We need an amendment to secure privacy rights, and not just abortion rights. We need an amendment that prohibits the federal government from collecting and retaining information on innocent U.S. citizens without any control or oversight of how that information will be used in the future.

We need an amendment to prohibit the states from infringing freedom of speech, freedom of the press, and freedom of religion.

And we need a serious discussion on whether we want the detailed rules for police conduct and criminal trials made by the local and state governments or by the U.S. Supreme Court.

Of course, the president doesn't really want a debate on judicial activism. What he wants is a vote that forces the Senate Democrats to go on record against a ban on same-sex marriage and reassures conservative Republicans that, despite the eye-popping expansion of the federal government, the wild spending, the NSA eavesdropping, and the push for a virtually open border, he's really their kind of guy.

If he can pull this off, he's got a great future in time-share sales.


Copyright 2006

Editor's note: You might be interested to read these:

Judicial Activism and the Constitutional Amendment on Marriage
The Cat, the Bag, and Justice Scalia
The Marriage Protection Amendment of November, 2006
Why There is No Constitutional Right to Privacy, and How to Get One
A Retirement Plan for Sandra Day O'Connor
How to Get Congress to Foot the Bill for Illegal Immigration, and Fast"
How the First Amendment Came to Protect Topless Dancing (column-length version)
How the First Amendment Came to Protect Topless Dancing (full essay)

.