A Legal Analysis of the “Marriage Protection Amendment”
Here is my personal legal analysis of the “Marriage Protection Amendment” that is pending before the U.S. Senate. Below is the text of the proposed amendment:
Section 1. This article may be cited as the ‘Marriage Protection Amendment’.
Section 2. 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 a woman.
Ironically, this amendment would dramatically expand the power of the federal courts and diminish the autonomy of state governments.
First, it provides not only a federal definition of marriage but a constitutional definition. It thereby explicitly commits the definition of marriage to the sole interpretation of the federal courts. By constitutionalizing the definition of marriage, it potentially creates a constitutional hook with which the federal courts could, if they were so inclined, rewrite marriage law as a matter of constitutional adjudication.
Second, the import of the amendment is unclear. By mandating a constitutional definition of marriage, it may potentially forbid states from passing civil union statutes. The amendment itself does not clearly address this issue, which means that it is left to the federal courts to resolve.
Third, it takes the unprecedented step of instructing state courts on how they should interpret their state constitutions. This not only interferes with the traditional autonomy of states to construe their own constitutions as they see fit, but it also dramatically expands the reach of the federal courts (and ultimately the Supreme Court) by making the federal courts not only the final arbiter of federal constitutional law, but also at least some issues of state constitutional law. This is at odds with our entire constitutional text and history. Furthermore, it would not keep state courts from saying the ambiguous state statutes require same-sex marriage, and hence wouldn’t even effectively remove state courts from same-sex marriage debates.
Fourth, the amendment makes no effort to address the question of full faith and credit. For example, there is nothing in this amendment that would keep the U.S. Supreme Court from ruling that all states are required by the Full Faith and Credit Clause of the constitution to grant full recognition to the same-sex marriages of Massachusetts. Furthermore, to the extent that Congress’s ability to legislate in this area with statutes like Defense of Marriage Act is in doubt, this amendment does nothing to insure that Congress if free to do so.
About The Author
“Bottom line, Nate, I’d say that’s a shoddy bit of post drafting. ”
Yes.
I’m interested too, Julie Smith. Possible ways one could post what Nate O. posted and still sustain the prophets:
–the prophets haven’t told us that this is the best possible marriage amendment, they’ve just asked us to support it. One can still discuss its flaws while thinking that, on the whole, its better than nothing. This would be more convincing if explicitly stated, however.
–legal analysis isn’t criticism, per se. It just shows what the amendment likely does or does not do. This is a first step to understanding what it is the prophets want or think important.
–this analysis is what Nate O. thinks in the absence of prophetic counsel. This would be convincing if explicitly stated, esp. if Nate O. identified areas where he would be inclined to adjust his judgment based on the prophetic instruction
–while sustaining the prophets requires supporting the amendment, it does not require believing that the prophets have exact knowledge of the ins and outs of this particular amendment. It might be useful to them and to Mormons generally to know what some of the problems with the amendment are, so that they can influence the language of future amendments. This would be more convincing if it were done after the amendment had already failed, however, or if some kind of support were explicitly indicated. But maybe Nate O.’s participation in the BCC thread is taken to be the explicit support?
Julie: I don’t think that I was calling Kevin Barney on the carpet about anything. I was simply trying to flag the issue of prophetic authority, which I think tends to get ignored as soon as we decide that we disagree with the prophet. Here are my conclusions thus far:
1. I think that sustaining and following the prophet ought to involve sometimes following the prophet when one would otherwise act or believe differently.
2. I think that there are situations in which we are justified in not following the prophet.
3. I am not quite sure how to reconcile 1 and 2.
Generally speaking, when I make this combination of points people get all huffy about how prophets are fallible, we have our free agency, we should be blind followers, Moutain Meadows was bad, and I am probably against the civil rights movements. In other words, a torrent of red herring.
Right now I am thinking along something like these lines:
I want to distinguish between statements by the prophet that are inspired and Church Doctrine. Inspiration is a matter of the action of the Holy Spirit in a particular case. Sometimes the prophet’s words are inspired and sometimes not. I suspect that the best way of figuring this out is to get a revelation about it.
Church Doctrine, however, is a much larger network of concepts and ideas that emerge from our collective interpratation of scripture, practice, and experience.
This gives us six different kinds of prophetic utterances:
P1. Inspired, accords with CD.
P2. Uninspired, accords with CD.
P3. Inspired, neutral as to CD.
P4. Uninspired, neutral as to CD.
P5. Inspired, opposes CD.
P6. Uninspired, opposes CD.
It seems to me that if we are really going to come up with some principled basis out of my three part quandry above (see 1, 2, 3), we will need to come up with some sort of rough ranking of authority as to the six kinds of prophetic statements. I am not quite sure about the ranking. Furthermore, placing any particular prophetic statement in one of these categories will require some combination of identifying CD (no mean task), and personal inspiration (or some other indicator of prophetic inspiration). Messy, but this is the current state of my thinking.
Here is my conclusion: We should follow the prophet (subject to everything else that I said in this comment) and the Allard Amendment is a bad idea.
Adam: Yes.
Ah, Nate, thanks. That’s what I wanted.
As I think others have already pointed out, but as seems often to be forgotten, it isn’t sophistry to believe that the First Presidency has not urged us to support the amendment under present consideration. They say (1) that the U. S. Senate will be voting on an amendment, (2) that they believe that marriage is strictly between men and women, (3) that they have repeatedly reaffirmed the position taken in the Proclamation on the Family, including an admonition to support measures designed to maintain and strengthen the family, and (4) that we should express ourselves on this urgent matter.
From no combination of these does it follow that the present amendment was something we should support. A person agreeing that marriage should not be allowed between same-sex couples but not favoring this particular amendment or not favoring resolving the issue by amendment would be in harmony with the letter.
Of course, letters to senators or anyone else on this matter will be divided into “for” and “against.” Any nuance will get lost in that division, so who knows where they would put a letter that says “I believe that, as a matter of law, marriage should be limited to the marriage of a man and a woman, but I oppose this amendment as a means of doing so.”
A point, Jim, that I’ve tried to make on several occasions here (T&S) and elsewhere but without your eloquence or brevity.
…Elsewhere being here:
http://www.bycommonconsent.com/2006/05/why-i-favor-gay-marriage/#comment-53858
“or not favoring resolving the issue by amendment would be in harmony with the letter.”
Jim F., a person not favoring resolving the issue by amendment would be in harmony with the letter but out of harmony with prior Church statements that an amendment is needed. While some of Nate O’s objections to this particular amendment are not objections per se to any amendment of the sort the Church wants, some of them are, and certainly most of the objections that have been expressed on the Bloggernacle are. But I do agree that its not sophistry to read the letter as not absolutely requiring support for the current amendment (though I do think it requires contacting the Senators). I don’t think its the best reading, but its not sophistry. Its plausible.
We of S.N.O.T.H. — Say N.O. To Hemlock — take exception to this constant denigration of our sophistry and, in general, ad hoc non- belief system.
Don’t ya ALSO have partially inspired or even neutral as to inspiration?
But — If some mechanism could be found for a person to determine such partial inspiration to be more inspired than not, I suppose for practical purposes it could be accounted for as being inspired? Or, alternately, for what’s less inspired than not, as uninspired? And, should be no way be found to weight it towards one direction or the other, for the individual to remain neutral as to the question of its inspiration then?
Sometimes the prophet’s words are inspired and sometimes not. I suspect that the best way of figuring this out is to get a revelation about it.
This may possibly be the most sensible thing ever said on this blog.
The ammendment failed to garner even a simply majority of the Senate. Vote was 49/48. Can we move on now ?
Can we move on now ?
Not yet. Now is the time for political junkies to start overanalyzing.
Republicans picked up 5 seats in the Senate, but the FMA picks up only 1 vote in the process. So even electing Republicans doesn’t move this amendment. If I were on the other side, I would be peeing my pants in frustration.
Republicans picked up 5 seats in the Senate, but the FMA picks up only 1 vote in the process. So even electing Republicans doesn’t move this amendment.
As I keep saying (and as I said I wish the First Presidency would figure out) this is about political posturing, not about marriage or gays or anything else. The vote was on cloture, to make certain that the amendment didn’t actually come to a real vote. Unless they really want the issue to come to a head, the Senate leadership on the Republican side excuses the Senators who might take political fallout by voting in favor. There are Senators who might like to vote in favor of the actual amendment, but the whip told them they’re excused because it would come back to bite them in the fall. And there are Senators who might like to vote against the actual amendment who were told sorry, you’re in a safe race so you get to take one for the team.
So you can’t tell all that much about who is for this and who is against this based on this vote. (Frankly, you wouldn’t be able to tell all that much about who is for this and who is against it based on an acutal up or down vote, either). That’s how legislatures work, friends.
“Sometimes the prophet’s words are inspired and sometimes not. I suspect that the best way of figuring this out is to get a revelation about it.
This may possibly be the most sensible thing ever said on this blog. ”
That blog isn’t that bad.