Marriage Amendment Is ‘An Unprecedented Transfer of Power…To Federal Judges’
Marriage Amendment Is ‘An Unprecedented Transfer of Power…To Federal Judges’
Yesterday, President Bush argued that the Federal Marriage Amendment, under consideration by the Senate this week, would take the issue of marriage away from the courts and to the people:
A constitutional amendment will put a decision that is critical to American families and American society in the hands of the American people, which is exactly where it belongs. Democracy, not court orders, should decide the future of marriage in America.
Actually, the opposite is true. Georgetown Law Professor Michael Siedman explained today at an event at the Center for American Progress:
If enacted, their handiwork [the FMA] is bound to produce outcomes that no one could have wanted or intended and an unprecedented transfer of power over domestic relations to federal judges…Clearly, the framers of the amendment meant to distinguish between “marriage” itself and its “legal incidents.” This much is obvious because the first sentence…defines only “marriage,” while the second sentence refers to both “marriage” and its “legal incidents.”…
Apparently, the framers have in mind a distinction between core legal attributes, which make up “marriage,” and an unspecified list of peripheral attributes which make up its “legal incidents.” Because the amendment is entirely silent about what is core and what is periphery, it gives federal judges unchecked power to place various aspects of marriage in one category or another.
Let’s consider a hypothetical. Suppose that a state passes a law creating “civil unions” with almost all the benefits of marriage. Does this count as a “marriage” or is it only the “legal incidents of marriage?” Which category it falls into determines whether civil unions will be constitutional. That decision will now be turned over to federal judges for the entire country. Short of another constitutional amendment, there is nothing the state or federal government will be able to do about it.
Full Text of the Federal Marriage Amendment:
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
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I love when brilliant legal minds correct Georgie’s fallacious logic!
June 5th, 2006 at 1:59 pmEven the text of the amendment seems to do something opposite to the constution! It’s actually REMOVING a right of the people! Bush is setting a precedent that WE DON’T WANT SET!
Viva La Revolution ;)
June 5th, 2006 at 2:05 pmThe ECHO-CHAMBER that is our tv and radio and newspaper media today, and the RIDICULOUS AND ABSURD POLITICAL ISSUES they attempt to distract us with:
THEY’RE HERE…
THEY’RE QUEER…
IGNORE THEM!
It’s all about Iraq this political season; and Congressional Ethics; and a record-breaking Federal deficit; and all things to do with Intelligence, most notably the Senate Committee.
Why be distracted by “gay marriage”; just what is it you’re being distracted from; just why is the president and his party (so fearful of this political season) are resorting to this issue?
June 5th, 2006 at 2:12 pmThis is Bush’s last gasp. Catering to the religious right is political suicide as anyone well knows by now. The good thing is that the Chimp in Chief is so spiteful he’s going to deliver congress to the Democrats. Be thankful.
June 5th, 2006 at 2:16 pmspeaking of religion
Pope presses Blair to seek diplomatic solution over Iran dispute
By Melissa Kite and Michael Hirst
Tony Blair was urged by the Pope yesterday to pursue diplomacy rather than conflict in Iran.
The Prime Minister’s audience with the Pontiff was described by Downing Street aides as “a dynamic discussion”.
That goes for you too Wacko Bush
June 5th, 2006 at 2:20 pmThe sanctity of marriage must be protected–get the divorce lawyers!
Seriously the sanctity of marriage died with Henry VIII.
June 5th, 2006 at 2:25 pmI was thinking, maybe all this posing about same sex marriage isn’t about same sex marriage. Perhaps the point of all this is to build sentiment against the courts. Some of the key rhetoric I heard has said it is undemocratic to allow the courts to decide. The courts are being made the villains here.Is the attack against same sex marriage just another volley in the attack on the institution of the courts?Think about it: on so many issues before the current executive, the courts are going to what to have their say.
June 5th, 2006 at 2:26 pmWill any one getting married have to be inspected to be sure their of opposite sex. Sounds like good job and might help solve the unemployment problem
June 5th, 2006 at 2:28 pmThere are 1,138 rights commonly associated with marriage. If the federal government defines “marriage” this way, they’re all up for grabs in court cases for the rest of our lives.
Nice going, wingnuts. Maybe an amendment written by someone who’s NOT a drooling, superstitious freak would have taken this into account. As it is, we’re ruled by trash.
June 5th, 2006 at 2:30 pm.
It is just like I thought it would be when Bush issues a new Call To Hate. This little mad man acts to cultivate fear, hatred, intolerance, racism and bigotry.
Bush’s last Call to Hate is merely smoke and mirrors designed to take the focus off his miserable poll numbers, his illegal spying, illegal immoral war, U.S. soldiers slaughtering innocent Iraqis and their subsequent cover up of the facts, whores and money for political favors. Don’t be fooled. Even though Bush is a homophobic bigot, this is not the issue at hand, it is re-framing American focus and re-energizing his “base†that faction of people that are poorly educated and overly racist.
His hopes are that the crazies that back him will be reenergized and make a stink over this Gay Marriage Hate Amendment. He tried it two weeks or so ago when he played the racist card on immigration. And for a while you didn’t hear about people demanding Rumsfailed step down, you didn’t hear about Bush stopping many many lawsuits dead in their tracks claiming states secrets. Because that Call to Hate worked temporarily for Bush.
The American people caught on to the terror by color twister game that Rove was playing just before the elections, so that dog won’t hunt for him anymore. So they invent new and improved tactics and dust off the GOP standard hate items like abortion, Gay Marriage or stem cell research. In the 1950-60’s they were able to use the race card, but that fell from fashion. Thank God they still have the Gay card. And don’t expect a definitive decision on abortion, because as long as it is undecided, it is a major focus stealer/traction grabber for the GOP.
The so called media are playing right along with this smokescreen and running Bush’s Call to Hate story all day, every moment, right into the ground. I guess this is as good as they can do since many no longer enjoy running the paid propaganda disguised as news.
During all this Call to Hate, you are missing stories like: whores for senators, bribes for senators, sex parties and poker for senators, spying on your e-mails, blogs and phone calls, illegal war, war crimes, and so much more. But the one thing that you are missing, due to lack of journalists doing any kind of real work with the story of Bush ignoring an unprecedented 750 or more laws. These are laws signed by him that he expects you and I to follow and if we don’t we will go to jail, but for whatever unknown reasons he attaches these so called signing statements to them which tell how this law is for everyone but him and his cronies.
I am much less worried with Bush’s Call to Hate than the story of the soldier that witnessed members in his unit playing soccer with the decapitated heads of Iraqi civilians. This disturbed him so much that he has gone AWOL. Bush knows about going AWOL, but only for a year or so of drugs, sex, and alcohol, not because he saw something that disturbed him.
Have you noticed that there are no current job approval ratings published for Bush? Coincidence? I don’t think so.
June 5th, 2006 at 2:31 pmI like the part where Georgie says this:
As this debate goes forward, we must remember that every American deserves to be treated with tolerance, respect, and dignity.
Apparently not.
June 5th, 2006 at 2:55 pmWhat about hermaphrodites… can they marry?
I wonder if ol Georgie Boy knows that this whole sex thing ain’t exactly cut and dried… some folks got both sets of naughties.
Do they get to marry anyone they want or no one?
June 5th, 2006 at 3:04 pmA constitutional amendment will put a decision that is critical to American families and American society in the hands of the American people
Well, some of them. Obviously, it will take the decision to get married completely OUT of the hands of gay couples. Of course, Bush doesn’t seem to consider gay people “American people”.
Democracy, not court orders, should decide the future of marriage in America.
“…and when I say ‘Democracy,’”, Bush continued, “I am assuming that, like me, you are unaware of the concepts of ‘individual freedoms,’ ‘inalienable rights’ or the ‘tyranny of the majority’. My grade-school understanding of Constitutional law tells me that, if a majority of the people want something to be illegal for a minority, well, that’s that. Too bad, minorities!
Y’know, It’s too bad we didn’t have a Constitutional scholar like me around in the 1960’s. Think of how helpful a federal anti-miscegenation amendment would have been in enacting the will of the majority, who wanted to keep the white race pure! Heh heh heh…”
June 5th, 2006 at 3:12 pmThe Marriage Act will be the death of the concept of “full faith and credit” between states; states will be free to ignore the statutes of other states – a dangerous precedent.
Next, states that outlaw abortion will no longer accept as valid the driver’s licenses of drivers from states that allow abortion.
Luckily there’s no chance of this abortion of justice ever passing.
June 5th, 2006 at 3:28 pmA question for anyone. A few weeks ago there was all kinds of press how Karl was on the ropes, going to step down as he was to be indicted any moment now. Well, when is the indictment going to happen so Karl is removed from power, or atleast castrated? We all know he is at the spine of these meaningless political spins.
June 5th, 2006 at 3:31 pmAnother little-noted aspect of this amendment that would eventually require judicial scrutiny is that which was raised in the Texas case Littleton v. Prange.
Christie Lee Littleton is a male-to-female transsexual whose 1989 marriage in Kentucky to Jonathon Mark Littleton was invalidated in Texas in 1999 when she was a party to a wrongful-death action against the physician who treated her husband prior to his death. In the opinion, authored by a Republican appellate court justice, the “full faith and credit” clause in the U.S. Constitution was implicated as the Court ruled that because Ms. Littleton presumably has XY sex chromosomes that she is a man for all legal purposes despite her normal day-to-day appearance and manner of life since 1979 when she had sex reassignment surgery.
The United States Supreme Court ultimately declined to hear an appeal. However, as the number of transmen and transwomen increase (many of whom are indistinguishable from other members of their target gender without intrusive medical examination) and they continue to marry and seek to be married, more and more courts will be called upon to rule as to which particular arrangement of genital tissue and/or sex chromosome pattern (of which there are at least eight) define an individual as woman or man. This would create a situation that was described in 1996 by William O. Beeman, a professor of anthropology at Brown University, thusly:
So, aside from the political reality that this proposed amendment is simple pandering, it is also potentially bad law because it will create as many legal questions as it supposedly would resolve.
June 5th, 2006 at 3:39 pmWhy No wingnut minsiters on TeeVee behind bush or being shown in tha house since this is a most important step for jesus and marriage?
June 5th, 2006 at 3:51 pmDisagree .. Reduces the grounds to go to court
The way that I read the ammendment is that if there are “1,138 rights commonly associated with marriage” {see: “9″, ref wanted}, the ammendment, which I am opposed to, says that these rights, and the label Marriage, are up to the legislaturers or voters of each state and notappealable to the Court on constitutional base or automatically transferable between states.
Thus it seems to me that this prevents the courts from considering any of these rights constitutionally protected. e.g. It reduces the power of the Federal Judges.
Where am I wrong.
p.s. It looks as though any time a law is passed that says that Marriage has additional rights, then it also removes those rights from the Court’s review… E.G. if they pass a law that says that Married people should not be slaves, then this eliminates any right for the court to consider individual slavery?
June 5th, 2006 at 3:58 pmA constitutional amendment will put a decision that is critical to American families and American society in the hands of the American people, which is exactly where it belongs. Democracy, not court orders, should decide the future of marriage in America.
And if we can get enough homophobic bigots to come out on Election Day, then maybe we can get slavery back on the books too. After all it’s not what is legal under the constitution that matters. All that matters is what the majority of people will vote for… or against before we flip their votes.
June 5th, 2006 at 3:58 pmMarriage should not be an issue period. It is a known fact and a right fact that marriage is between a man and a woman period.
June 5th, 2006 at 3:58 pmCan a hermaphrodite marry a man or a woman or must they mary another hermaphrodite?
June 5th, 2006 at 4:16 pmto sista (#20). Slavery was a known fact for half of this nations history (and still is fact around the world)… That doesnt mean its right. Previous posters were correct, the Constitution is in place to protect individual rights, and to protect the rights of the minority from the often times corrupt majority. The majority once ruled slavery was perfectly acceptable, see how we got that one wrong. There have been NO arguments to date that justify denying same sex marriage. The only argument that any of the small minds can fall back on and not be shot down is “its against my religion to let you marry who you want”… well guess what, I don’t follow your hypocritical religion and mine says its perfectly fine. So let me live my life and you live yours.
June 5th, 2006 at 4:21 pmjudges who, it just so happens, were appointed by Shrub…
June 5th, 2006 at 4:24 pmWhen exactly is government-sponsored prejudice against gay people going to stop. Prejudice is wrong, no matter who it is aimed at. Gay people getting married, having familes, adopting children (who will be brought up healthier and happier than most in heterosexual families — do a little research and find out) has zero effect on marriage, on heterosexuals, on religion, on anything for that matter. Zero effect. Yet, here we are again with Bush pushing this nonsense to the forefront to distract the ignorant bigots in our country from the real issues. Shame on anyone who bites this bate.
June 5th, 2006 at 5:38 pm#11 – I like the part where Georgie says this:
As this debate goes forward, we must remember that every American deserves to be treated with tolerance, respect, and dignity.
I was thinking more about this over lunch. This comment is really quite astounding coming from GWB, considering what happened after Katrina.
That’s right, I’m commenting on my own comment — wanna make something of it? ;)
June 5th, 2006 at 5:40 pmMarriage was not allowed between slaves or blacks at one time, by white men of course.
Marriage licenses were not even issued until the late part of the 19th century. Before that the government kept it’s nose out of who white people married. It was strictly symbolic, as it should be now.
I would think given the current informational mining that is going on in this KGB style so called democracy that the Nazis (dumbya and the like) would want marriages for everyone so they could collect and illegally spy on people and identify those that they are planning on placing in those Halliburton/Kellog Brown and Root concentration camps they are busy building here in the United States (to the tune of $385million – NO BID contract).
Bush’s latest Call to Hate is merely for political gain. If you can’t see that, you need to do a little research to find out how these masters of deception actually work.
I can’t wait for all these small minded little racist, homophobic, bigots to ring the door bell to Heaven only do discover when God answers the door she is a black, Jewish lesbian. At that point, these small minded bigots will hope God has more compassion, forgiveness and tolerance in her heart than they ever had in theirs.
June 5th, 2006 at 5:45 pmRE: Sista (comment #20)
“It is a known fact and a right fact that marriage is between a man and a woman period.”
So, Sista, who is a man and who is woman? Is this this a heterosexual couple or a homosexual couple? You be the judge and defend your verdict.
June 5th, 2006 at 5:49 pmIf you are mentioning known facts, I have one for you:
Dumbya is a homophobic bigot.
Sista – you should also know he hates anyone that isn’t white and that isn’t rich. After all with all those concentration camp beds, I am sure there is one for you too.
and a parting quote:
“An injustice anywhere is a threat to justice everywhere.” – Rev. Martin Luther King
June 5th, 2006 at 6:05 pmMarriage, like all family matters are within the purview of the states. Any attempts to federally legislate marriage violates the 10th Amendment. Clinton did not help matters when he signed the defense of marriage act, and the Supremes cannot be counted on to avoid the matter by remanding to the states.
June 5th, 2006 at 6:13 pmE.G. if they pass a law that says that Married people should not be slaves, then this eliminates any right for the court to consider individual slavery?
Actually, more to the point, if they pass a law that says that wives should be considered slaves (as an “incident of marriage” to teh benefit of the husband), this would insulate such a law from attack. Whatta deal!
Cheers,
June 5th, 2006 at 6:41 pmon gay marriage; LIVE AND LET LIVE!
June 5th, 2006 at 7:40 pmCut the nonsense!!
June 5th, 2006 at 9:29 pmIf I were in charge of who can and can not get married, I think I would have told Dick Cheeney’s parents that not only could they not get married, but they must be “fixed” immediately. I then would have moved over to Prescott Bush’s parents and explained that they couldn’t get married, and if they were to have children they would be directly related to the devil.
Now if everyone had to ask permission of everyone in the nation before they could get married, do you think that might cause just a little resistance?
Personally I believe that marriage should only be between a PROGRESSIVE AND ANOTHER PROGRESSIVE, and all other marriages are illegal.
You think that will fly?
June 6th, 2006 at 3:12 amNice post!
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Maybe their rationale is, the more time you spend shuddering at the idea of two guys butt fu**ing, the less time you’ll spend thinking about how badly you’re getting fu**ed yourself.
I’ve maintained that if the government insists upon legislating marriage, the line between “who can get married” and “who can’t get married” should not be drawn between homosexuality and heterosexuality, but rather between those who are legally eligible to sign contracts, and those who aren’t.
June 14th, 2006 at 2:20 am