policy claims and arguments

Wednesday, February 11th, 2004

A quick search of Firstgov helped me snag the text of co-sponsor Musgrave’s Federal Marriage Amendment  H.J. Res. 56.

This is classic policy claim stuff, complete with all the stock issues associated with a problem solution bit of argument. The solution to the problem is, of course, the amendment, which reads

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.

In my opinion (and perhaps in Orwell’s), phrases and verbal chunks such as “Neither . . . shall be construed to require that . . .” are always problematic, and, dare I say, always meant to deceive. “Be construed to require” here can be taken as “‘interpreted’ to require” or “shall be ‘interpreted’ to require that . . .” or ‘shall be understood’ to require. In other words, the amendment language is merely ordering that one interpretation be discounted, obviated, restrained, or simply ignored. All people shall take the color red as to construe the color of red and no other color shall forthwith be taken or be understood to mean any other color other than red. Personally speaking, I think a sentence like the first be set as law in the United States goes beyond idiocy. From here to eternity, none shall ever but when together and side by side grasp the left hand of their companion with their right hand unless they are married and in that case and in no other case which shall not be construed as a suggestion but as quoth from on high, or heard on the wind, shall henceforth keep their hands in the rear pocket of their opposite, which shall require that only married couples shall be required to wear pants.

To continue the stock language issues, here’s the problem the amendment means to solve

The Federal Marriage Amendment is an urgently needed response to the pending judicial destruction of the legal status of marriage in America. Most legal experts predict that a case now pending before the Massachusetts state Supreme Court will destroy marriage as the union of a man and a woman. At that point, lawsuits will be filed in every state to force this destructive social revolution upon the entire nation. Since over 70% of Americans believe marriage is uniquely the union of a man and woman, the American people have consistently voted to defend marriage in both Hawaii and Alaska.

Here are the advantages:

Existing Legal Protections Are Insufficient:

1. The federal Defense of Marriage Act (DOMA) cannot prevent activist groups from undermining marriage laws through lawsuits brought in state court in states such as Vermont and Massachusetts. These state lawsuits will lay the foundation for additional lawsuits around the country. For example, over 80% of Vermont so-called civil unions involve out-of-state residents — from every state in the nation — who will file lawsuits to undermine marriage in their respective states. A similar pattern can be expected to apply in Massachusetts.

2. State marriage laws and DOMA are not likely to survive if challenged in court. Although the courts may uphold the federal DOMA as it applies to federal law, they will almost certainly invalidate the section of DOMA that attempts to bar interstate transmission of same-sex marriages. Under the established doctrine of judicial supremacy in matters of constitutional interpretation, this section of DOMA will be viewed as an unconstitutional effort to base an Act of Congress upon a purportedly authoritative interpretation of a constitutional text (the Full Faith and Credit Clause)

Her’s the best solution though: do away with DOMA. Problem solved. The amendment language here is loaded not with constitutional legal dogma but with straw men and question begging. To this point: “The Federal Marriage Amendment is an urgently needed response to the pending judicial destruction of the legal status of marriage in America.” “Juditial destruction” is an inference not a fact, nor does it make much sense since the distinction between legal status as social construction and norm and legal status as political position doesn’t appear to matter. There’s no reference to the legal arguments coming out of the Mass court, which is where the argument should go or be directed toward, not as a political gesture, meant to head off some “destruction” of a “wish.” In the end, the question of DOMA and the above amendment go to the idea of bias and bad consitutional faith, not marriage or “status.”

This is naked politics. Not good, well argued law and policy.

If this were about just legal status and the love of some ideal of marriage, then we’d need a law outlawing divorce.


4 responses to “policy claims and arguments”

  1. Beverly says:

    Steve,

    I already foresee a hint of crazy divorce issues that could develop a stinky brew from the Vermont civil union laws. In order to dissolute a civil union, one member of the couple has to take up residency in Vermont for one year before the entire process is finished. That’s going to cause a lot of upheaval in peoples lives.

  2. Maureen says:

    It does seem that DOMA is aimed more at politics..[political gain] than from a real desire to preserve marriage…If DOMA will be contested [validity] then what is the point? If DOMA is enacted to prevent “civil unions” between same-sex couples..yet, those same couples will be able to marry despite DOMA..then what is achieved?

    A lot of this [and other legislation] is an attempt to “do something” to assuage the fears of middle america that somehow the center is not holding..that the end [of marriage and society] is near…

    It is another example of the government doing something…without actually accomplishing anything..but it looks great on paper and it is a great political tool…

    Others have said this and I will say it too…Are civil unions or homosexuals for that matter the real problem? Heterosexuals have done a great job on their own of debasing and demolishing marriage…The divorce rate being what it is is not a reflection of the influence of same-sex marriages or homosexual issues in general…

    Before we lay the blame on others..we must first look at ourselves..but that is much harder…It’s easier to pass DOMA or rail about the decline of American values on the campaign trail…

    Most Graciously,

    Maureen
    *A Mayde in her own little woode…

  3. ersinghaus says:

    Here, Maureen. I think Beverly points to an interesting complication and you’re clarity on notion of gain is well taken.

  4. Maureen says:

    Thanx Steve! I do try often try for clarity…;)

    I call it as I see it..and being election year..we cannot discount the political factor…

    Most Graciously,

    Maureen