SAYING "I DO" TO MARRIAGE: Edwin Meese III and Matthew Spaulding

...It's not clear what several key senators will do. They say marriage should be between one man and one woman. But they're reluctant to amend the Constitution. They probably think the 1996 Defense of Marriage Act, or DOMA, is enough to protect marriage.

That argument made sense eight years ago. ...

But two U.S. Supreme Court cases changed all that. In Romer vs. Evans, the court declared a state constitutional amendment unconstitutional because it was "born of animosity" toward homosexuals and violated equal protection under the U.S. Constitution. And in Lawrence vs. Texas, the court declared that all individuals have a due process right to "seek autonomy" in their private relationships, including "personal decisions relating to marriage."

Last November, the Massachusetts Supreme Court ran with these ideas when it ruled traditional marriage "is rooted in persistent prejudices" and that homosexual couples are legally entitled to marriage under the state constitution. Massachusetts now has issued more than 2,500 "marriage" licenses to same-sex couples from 27 states and the District of Columbia, creating legal standing to challenge DOMA nationwide. ...

"You'd have to be tone deaf," says Harvard law professor Lawrence Tribe, "not to get the message from Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect."

Just read the latest issue of the prestigious Harvard Law Review, the journal of record in elite legal circles: "Now the time is ripe for a constitutional challenge to DOMA." Why? Allegedly DOMA was motivated by animus, violates equal protection principles and is incompatible with substantive due process.

The first challenge to the constitutionality of DOMA has been filed in a Florida federal court, arguing DOMA not only abuses full faith and credit but, more importantly, violates the equal protection guarantee of the U.S. Constitution. ...

This doesn't mean marriage must be completely nationalized or regulated by the federal government. The Framers rightly left marriage policy with the states. But we can protect the states' liberty to regulate marriage, in accord with the principles of federalism, only by acting to prevent the institution itself from being redefined out of existence or abolished altogether.

This is a time for choosing.

One option is to allow a few radical judges to redefine marriage by legal fiat, according to their notions of social progress. By circumventing the legislative process and excluding the people from so fundamental a decision, these judges threaten our democracy and the rule of law.

The other option--this week in the hands of the U.S. Senate--is to proceed with the democratic process of amending the Constitution to reflect the settled will of the people.

Nothing less than the future of our society, and the course of constitutional government in the United States, are at stake.

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posted by Eve at 8:01 PM | link

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