SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Tuesday, February 24, 2004

PRESIDENTIAL SUPPORT OF DEFENSE OF MARRIAGE AMENDMENT: As most everyone knows, today's big news story is that President Bush announced that he is in favor of a constitutional amendment to the Constitution, defining marriage as the union of one man and one woman. He did not specify what particular language he supports in such amendment.

Despite my reluctance to amend our Constitution and the fact that I would prefer to let states decide the issue, I fully support the President on this matter. The bottom line is that if the people do not amend the Constitution, the federal courts will amend it through judicial fiat. If the people do not act, they will ensure that an unelected and unnacountable tribunal to redefine the basic building block of civil society.

I have been following the commentary of Ramesh Ponnuru on the marriage amendment issue. As always, he has been razor sharp and insightful. In fact, I don't believe I have ever read an article by him with which I did not wholeheartedly agree--including his article concluding that affirmative action is not unconstitutional under the 14th Amendment's Equal Protection Clause, mind you.

In any event, I understand that Congressman George Nethercutt, now a Republcan candidate to oppose Sen. Patty Murray for her seat in the Senate, has publicly opposed the President. Considering all the support he has been given by the President and Vice President, I am surprised. More to the point, I am disappointed because this issue is much bigger than Congressman Nethercutt, and as a lawyer he should know better. The U.S. Supreme Court has laid down the framework for the redefinition of marriage with the underlying logic of the recent Texas v. Lawrence (2003) decision. It is only a matter of time before a non-traditional couple or trio with marriage license issued by their local state challenges the the Federal Defense of Marriage Act (passed overwhelmingly by Congress and President Clinton, pursuant to the Article IV Full Faith and Credit Clause) on Equal Protection or Right of Privacy or some sort of Substantive Due Process/Liberty grounds.

For the record, I support an amendment that would prohibit state courts from redefining marriage as well. However, I am quite willing to allow states to grant various sorts of domestice partnership benefits--just as long as it is achieved through the democratic process.

Finally, I think it imporant that this isn't a mere ban on homosexual marriage, as amendment opponents would claim. Rather, this is a DEFENSE OF MARRIAGE AMENDMENT. This is important because there are forces at work on the fringes that want polygamy and a whole host of other false notions of "marriage" to be given Constitutional protection. The logic of the Planned Parenthood v. Casey (1994) "sweet mystery of life passage" and the Lawrence decision contradict the Supreme Court decisions from the 19th Century upholding prohibitions against polygamy. Homosexual marriage may be the immediate threat to traditional marriage, but it is by no means the only serious one.

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