In response to a Tim Noah column, Ramesh Ponnuru writes:
Noah also writes, "The state laws, and the question of whether or not state courts will uphold them, are none of Bush's business, because he opposes Washington meddling in local affairs." This idea seems to be coming up a lot: that it is in principle never federal business what state courts do. (More to the point, that the whole people can never use the amendment process to deal with state courts.) Now there must be at least a limiting case here. A state judiciary can't just be allowed to "interpret" the laws so as to abolish the governor's office and the legislature and have the chief justice of the state supreme court govern alone as king. Presumably at that point everyone would agree that federal action might be warranted.
Ponnuru is correct to point to some limits, but the limits he points to are not limits of the state court, but limits of the state itself. Neither the legislature, nor the governor, can abolish those branches of government and set up a king. It's not a matter of a state judiciary not being allowed to interpret its constitution. The US Constitution guarantees every state a "Republican Form of Government." Likewise a state court cannot mandate slavery, or take away a woman's right to vote, but that is because the state itself lacks the authority to do so. Thus the state court, which derives its authority from the state, similarly lacks the authority. The first sentence of the FMA would remove the authority of states to recognize same-sex marriage. In this sense it is similar to other amendments which restrict the states--whether by judicial action, legislative action, or popular referendum. This sentence has nothing to do with judicial interpretation or activism. It limits the entire state and is a complete reversal for Bush who in 2000 said this matter should be left to the states. It now seems it should only be left to a state provided the state agrees with him. If same-sex marriage constitutes such an assult on our liberty that the citizens of a state must be protected from even the majority instituting it, perhaps we need to liberate the Netherlands from the cruel oppression of its government.
The second sentence of the FMA is intended to prevent state courts from requiring civil unions as happened in Vermont. [I agree with Professors George and Bradley that the first sentence of the FMA would ban even the legislature from enacting a law that gave same-sex couples a status "equivalent" to marriage. It does this is the same way as the prohibition of slavery would prohibit someone from "owning" another person regardless of what is was called.] The sentence is intended to allow the legislature to pass some form of civil union, though. This is supposed to be a cure for state-level judicial activism and is completely unprecedented. States give their courts the authority to interpret laws and to interpret constitutional requirements. If a legislature feels a court misinterpreted its law, it can pass a new law to clarify it's intent. If the people feel that a court has misinterpreted the state's constitution, they can amend it to conform to what they believe the guiding principles of the state should be. My understanding is that state constitutions generally get amended much more often than the US Constitution. In either case it is an internal state matter. In some instances a person might even disagree with a court's interpretation, but find the interpretation to be reasonable and not wish to overturn it with an amendment. It is also unclear to me how a court requiring a hospital to allow visitation rights somehow destroys marriage, but if a legislature does the same thing marriage is safe.
If Ponnuru really thinks the action of the courts in Vermont and Massachusetts have denied the people of those states a "Republican Form of Government" and they are helpless to stop it, no amendment is necessary. The Constitution would, in that view, already mandate the US Government intervene. Ponnuru should be urging the President to send in troops into Vermont and Massachusetts and remove the tyrants from the bench immediately. If the judges have a blatant disregard for constitutions and have usurped power, no constitutional amendment is going to stop them. Armed forces are necessary. Bush didn't propose an amendment to remove Saddam Hussein. If the concern is just a difference of agreement on how a state constitution should be interpreted, though, that matter should be left for the state to decide. If Ponnuru or Bush is concerned with the Supreme Court of the US misinterpreting the US Constitution, then perhaps an amendment clarifying the meaning of the US Constitution might be necessary. We could then debate what the Constitution does and should mean. Proponents of the FMA, though, should explain why preemptive action is necessary. If a state is forced to recognize another state's same-sex marriage, even if only for a few months, would that destroy the fabric of our civilization?
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