THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Volume VII, Issue # 66, April 2, 2005
Dr. Almon Leroy Way, Jr., Editor
Government Committed to & Acting in Accord with Conservative Principles
Ensures a Nation's Strength, Progress, & Prosperity
CONGRESSIONAL LEGISLATION TO ELIMINATE
FEDERAL COURT JURISDICTION OVER MARRIAGE
By Dr. Ron Paul
THE UNITED STATES CONSTITUTION, THE AMERICAN FEDERAL SYSTEM, & THE PROPOSAL TO ADD AN AMENDMENT TO THE
U.S. CONSTITUTION DEFINING MARRIAGE SO AS TO EXCLUDE HOMOSEXUAL DOMESTIC PARTNERSHIPS -- THE DAMAGE THAT
SUCH A CONSTITUTIONAL AMENDMENT WOULD DO TO WHAT IS LEFT OF AMERICAN FEDERALISM & THE RESERVED
POWERS OF THE STATES -- FEDERAL STATUTORY LEGISLATION THAT WOULD MORE EFFECTIVELY THWART THE SECULAR,
PRO-GAY POLITICAL & CULTURAL LEFT &, AT THE SAME TIME, PREVENT THE FURTHER EROSION OF STATES' RIGHTS:
LEGISLATION THAT CONGRESS COULD ENACT TO PREVENT ACCEPTANCE & RECOGNITION OF GAY "MARRIAGES" FROM BEING
IMPOSED ON THE STATES BY THE U.S. COURTS
FULL STORY:
The President’s announcement, in early 2004, that he supports a federal constitutional amendment defining marriage intensified the
gay marriage debate. It seems sad that we need government to define and regulate our most basic institutions.
Marriage is first and foremost a religious matter, not a government matter. Government is not moral and cannot make us moral. Law
should reflect moral standards, of course, but morality comes from religion, from philosophy, from societal standards, from families,
and from responsible individuals. We make a mistake when we look to government for moral leadership.
Marriage and divorce laws have always been crafted by each of the states of the American federal union. In an ideal world, American
state governments enforce marriage contracts and settle divorces, but otherwise stay out of marriage. The U.S. national government,
granted only limited, enumerated powers by the United States Constitution, has no role whatsoever in making and enforcing marriage
and divorse laws.
However, many Americans understandably fear that, if gay marriage is legalized in one state, all other states will be forced to accept
such marriages. They argue that the Full Faith and Credit Clause (Article IV, Section 1) of the U.S. Constitution [1] essentially
nationalizes the issue; hence a federal constitutional amendment is necessary.
But a federal law, the Defense of Marriage Act, which was passed by Congress in 1996, explicitly authorizes states to refuse to
recognize gay marriages performed in other states. Furthermore, the U.S. Supreme Court repeatedly has interpreted the Full Faith and
Credit Clause to allow Congress to limit the effect of state laws on other states. In fact, federal courts almost universally apply the
clause only to state court judgments, not statutes. So a federal constitutional amendment is not necessary to address the issue of gay
marriage, and will only drive yet another nail into the coffin of American federalism -- constititutional division and distribution of
governmental powers between the national government and the states, with a substantial degree of political autonomy, or home rule,
constitutionally reserved to the states and constitutionally guaranteed and protected. If we turn regulation of even domestic family
relations over to the national government, presumably anything can be nationalized and the U.S.A. will cease to be a federal union of
semi-autonomous states and become a unitary state, i.e., a highly centralized governmental system.
The choices are not limited to either banning gay marriage at the national level, or giving up and accepting it as inevitable. A far better
approach, rarely discussed, is for Congress to exercise its existing constitutional power to limit the jurisdiction of federal courts.
Congress could statutorily remove whole issues like gay marriage from the jurisdiction U.S. courts, striking a blow against judicial
tyranny and restoring some degree of states’ rights, or state autonomy. We seem to have forgotten that the U.S Supreme Court is
supreme only over lower federal courts; it is not supreme over the other branches of government. Under the U.S. Constitution and our
federal system of government, the judicial branch of the national government is co-equal to Congress and the national executive Too
often, however, the federal judiciary, especiallty the U.S. Supreme Court, serves as an unelected, unaccountable legislature.
It is great comedy to hear the secular, pro-gay political Left, so hostile to states’ rights in virtually every instance, suddenly discover
the tyranny of centralized government. The newly minted protectors of state autonomy and local rule find themselves demanding:
“Why should Washington dictate marriage standards for Massachusetts and California? Let the people of those states decide for
themselves.” This is precisely the argument Conservatives and Libertarians have been making for decades! Why should Washington
dictate education, abortion, environment, and labor rules to the states? The American people hold widely diverse views on virtually
all political matters, and the Founders expected the various state governments to most accurately reflect those views. This is the
significance of the Tenth Amendment to the Federal Constitution [2] -- the amendment which the political Left has abused for decades.
Social problems cannot be solved by constitutional amendments or government edicts. Nationalizing marriage laws will only grant
more power over our lives to the national government, even if for supposedly Conservative ends. Throughout the twentieth century,
the relentless nationalization of state law served the interests of the political and cultural Left, and we should not kid ourselves that
the same practice now can save freedom and morality. True Conservatives and Libertarians should understand that the solution to
our moral and cultural decline does not lie in a strong centralized government Political centralization will not result in the restoration
or reinvigoration of traditional American values and institutions.
NOTE:
[1] U.S. Constitution, Article IV, Section 1: "Full Faith and Credit shall be given in each
State to the public Acts, Records, and
judicial Proceedings of every other State. And
the Congress may by general Laws prescribe the Manner in which such Acts,
Records and proceedings shall be proved, and the Effect thereof."
[2] U.S. Constitution, Tenth Amendment: "The powers not delegated to the United
States by the Constitution, nor prohibited by it
to the States, are reserved to the
States respectively, or to the people."
LINKS TO RELATED TOPICS:
Legal Issues, Lawyers, & America's Judiciary
Marriage, Family, & Society
Morality, Decency, & Traditional American Family Values
Dr. Ron Paul is a Republican member of the United States House of Representatives, elected from and representing the Fourteenth
Congressional District of Texas. Congressman Paul is considered to be one of America's leading spokesmen for constitutional
government, the rule of law, liberty under law, the private enterprise system,, free market economics, sound monetary policy, and
fiscal restraint on the part of the U.S. national government.
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