On federalism — defense of marriage act and the end of property rights   Leave a comment

as published on examiner.com

Outside of abortion there are few issues of an interpersonal, private nature more contentious on the philosophical, moral, and political battlefield than those involving the gay relationships.

Thanks to changing cultural awareness and a broadening of our scientific understanding of  human sexuality one might assume that it is a fait accompli that inheritance, visitation, and possibly parental rights and responsibilities of gay couples  will eventually find themselves protected on the federal level and in most states.  Perhaps they may indeed. A contributing factor of this eventuality is our fuller understanding of what Constitutional protections actually consist of in day to day life.

Unfortunately, this broadening of cultural and legal norms will be moot if and when the Supreme Court intervenes in the Constitutional travesty that is the Defense of Marriage Act (DOMA).

Far from providing protection of religious liberties, affirming the authority  of States to determine their own laws, and far from quashing a possible constitutional crisis (as DOMA was intended),  what awaits us in the event of  Supreme Court Judicial review is instead a grave threat to religious liberties and an even greater threat to property rights.

These are merely the end results. The more immediate concerns are far more troubling;  legal, social,  and philosophical ripple effects throughout our culture are a near certainty.

Regardless of how the court rules (the Court will likely strike the law down, but it may not), when DOMA is decided by the Supreme Court each of us will pay social and economic penalties that are unaffordable, but not unforeseeable. These penalties are destructive to our system of  federalism — particularly as it relates to checks and balances on government power and to the authority of the States to determine their own laws and norms.

As it exists, this law gives Congress the power, at its discretion,  to nullify the authority of the individual States to determine and to define marriage and  marital protections. Marriage, once the province of State law, has been kicked upstairs (insofar as it must or need be recognized or protected by Federal Law).

On its face DOMA of course defines what marriage may be in the United States (on the Federal Level). It also allegedly affirms the authority of each State to determine its own prerogatives vis a vis marriage; it allows each state, at its discretion, to ignore the rights and responsibilities of marriage afforded to individuals by another state when those individuals have had a legally performed marriage in that other State.

This was, of course, the stated intent of DOMA.

Unintended consequences arising from DOMA were rarely discussed publicly, except by a Left wing with its own particular philosophical/moral ax to grind.

Even the Left did not foresee (nor would it likely be concerned by) all of the unintended consequences of DOMA that it has failed to concern itself with. The Right has not either, primarily out of its larger concern to stop at any cost that it deems the greater threat of gay marriage.

Rather than validating and protecting each individual State’s  authority DOMA  instead strips that authority away.  It grants a single branch of  Federal government — Congress — the power  to usurp a role once held only by the States, that role and authority being (in the case of marriage) the ability and privilege of  defining contractual obligations. Ostensibly marriage is of course a social contract.

With the understandings set by Articles IV and VI, however, DOMA will allow Congress to do a great deal more via a positive Supreme Court ruling on DOMA.

Article VI, as Federalism is currently understood, dictates that Federal Law supersedes state law in cases where state and federal law contradict one another.

Article IV, as currently read, declares that each State must recognize the legality of acts performed by another, if not comply with their application.

A Constitutionally recognized DOMA effectively removes the authority of the Court to determine a law’s  Constitutionality.  This will be so if Congress is allowed that power in regards to this particular law.  A positive Review of DOMA would be  the Court granting its acquiescence to that now non existent authority.

If it is logical and Constitutional for Congress to determine what is or is not “full faith and credit” in a given particular and also whether “full faith and credit” need be given; if it is logical and Constitutional for Congress, in this given particular,  to decide that on marriage it (Congress) may grant immunity to States from the acts of another State; if both of these premises are decided by the Court to be logical, and thus the decisions on this issue by Congress permissible and lawful,  then there can be no other understanding than that Congress ought,will, and does decide what is or is not Constitutional.

There can also be no other understanding ( if indeed DOMA is legitimate) than that Congress has the authority to grant Constitutional privileges and immunities, rather than  States naturally holding them under their own authority via Article IV, V, VI, and the ninth and tenth amendments.

If upheld DOMA will broaden the authority of the Federal Government under Article VI  AND this decision will nullify precedent established by the 1803 Marbury v Madison case that established the responsibilities and the authority of the Supreme Court.

DOMA will all but remove also any legal teeth still remaining in the ninth and tenth amendments that grant authority to the States and to the People.

Under the terms and the logic established by DOMA,  If the Supreme Court upholds DOMA as legitimate and binding the Court will tacitly cede its role in to Congress,  on this particular case.

This will embed into our legal understanding the premise that Congress has proper authority to determine what it (Congress) recognizes as marital (and property) concerns — and it (Congress) may deem whether those concerns are binding, legitimate, or lawful.

Marriage is and was a province of the States. By the logic set in a Constitutionally recognized DOMA, if authorized (under the grace granted to them by a Supreme Court nod to DOMA)  to set a federal guideline for marriage that States may or must accord with (and they must under Article VI) Congress will have the authority to determine when or where Federal and State authority clash.

By upholding DOMA the Court will give Congress the unprecedented authority to “interpret” the Constitution — in this single case.

Gone, in this particular case, is precedent established under Marbury v Madison.  Gone,  in this particular case, is the Court’s role in checking the Congress and in determining for the nation the Constitutionality and binding authority of a given law.

Gone also  —  and permanently trumped under  precedent set by DOMA —  is the authority of each state to set standards for social contracts and for civil issues. Prior to DOMA other states merely recognize “the records, acts, and judicial proceedings” of another  State when necessary. Post DOMA, they will be freely allowed to ignore them.

Laws and court proceedings are today acquiesced to easily and readily; their legalities are readily apparent in most cases, thus the rarity of Judicial review.

Were DOMA to be upheld, acts of one State will and can no longer cross borders as easily and readily (and their legal standing no longer apparent, if existing at all) as they now do under Article IV. They will and can not if the acts and proceedings of a State may indeed be ignored by another State under the logic set by DOMA.

How can one be objective determining the general legitimacy of State law  if it is decided that a specific State law can properly be ignored at will, simply by an act of Congress in any particular, when Congress heretofore has never had that authority?

At which point can or will a line be drawn, and where can or will the bar be set — and who decides?

Even the simplest of questions: “how will a decision be made on who decides?” cannot be answered under the haphazard, ill conceived, non objective conflagration of law and precedent left in the wake of a positive DOMA decision.

How will one State have its proceedings recognized elsewhere, such as when dealing with laws related to property concerns and with business transactions that necessarily require speed and efficiency,  if each state’s actions and laws may well be ignored at the whim of another state, particularly when each act of a State might require review by another State or by Congress?

Will this then slow down to a crawl the processes of business, of State wide legal decisions, of State civil proceedings,  of criminal prosecution of offenders from other states, and perhaps local civil actions?

Such decisions could indeed be halted at  whim, said halt precipitated by mere referral to the DOMA decision and by  a Congressional, State, or court step in.  this presumes of course that the States or the Court are  indeed left with any authority whatsoever.

Gone will be the third branch, insofar as its check on the other two in regards to a law’s Constitutionality and its application — the only role the Court actually has.

Replaced  by such collapse would be a forever changing set of federal and quasi State law, rapidly upturned by any Congress that may deem a particular law egregious or unnecessary.   Each side of the political discussions will merely write new State law to trump old — in the Halls of Congress rather than in State houses.

Wishing to prevent the unlawful and immoral spectacle of forcing States and individual recognition and support of Gay marriages that many may morally oppose, the defenders of DOMA would instead bring to our political shores, to our homes and bedrooms, to our businesses and to our State houses  something far more damaging and worrisome  — a single body of men and women with the authority to make decisions for all under what would be a fully nationalized body of Law.  Courts, States, and municipalities be damned.

Gone would be our historically unique and near perfect two hundred plus years of Federalism.  In its place we’d instead find a hydra headed monstrosity of a monarch that could no longer properly be called the Congress of these United States.

Neither George of Britain nor the triumvirate of Rome could have had it so good. Where is our modern Brutus (or preferably our Jefferson) to put a knife into the beast that is the ironically and grotesquely named Defense of Marriage Act?


Posted May 13, 2011 by cchashadenough

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