MARRIAGE PROTECTION ACT: Maggie Gallagher

As far as I can tell the Marriage Protection Act, even if Constitutional (which I doubt the Court will accept, regardless of what we here on MarriageDebate.com think) isn't efficacious in any way.

It forbids the Court from reviewing any cases arising under the second sentence of DOMA. It doesn't forbid the court from reviewing cases arising from the 14th Amendment. If federal courts were to intervene in marriage law, they  would be reviewing whether the state's marriage law conforms with the U.S. Constitution. DOMA would not enter into the legal reasoning as a "cause of action." (It could be used by prosecutors as evidence of Congressional policy on marriage, but how could that trump the 14th amendment's equal protection concerns.)

It doesn't even attempt to protect the federal definition of marriage in DOMA as the union of one man and one woman.

It's not clear what the statutory force of the second sentence of DOMA is anyway, since it restates general conflicts of law principles. One state may not "force" another state to recognize gay marraige. How could it possibly do so? Yet New Yorkers will still get gay marriage via Massachusetts, since its attorney general has provisionally ruled New York law requires it to do so. The people's will is irrelevant to this process of legal elites.

The Marriage Protection Act attempts to do less than most people think. I think it succeeds in doing nothing while pretending to do something.

A good definition of much political activity.

posted by Eve at 6:17 PM | Link |

0 Comments:

Post a Comment

<< Home