Did I read aright the piece on “Gay Marriage” by Prof. William J. Quirk (“What’s Next for the Imperial Judiciary?” News, January)? When he puts forth his solution, it turns out to be the passage of a bill that will give the “last word” to “[e]ach state’s high court.” But as he himself points out earlier on, that will result in courts such as that in Massachusetts forcing “gay marriage” down society’s throat! Professor Quirk does add that “Congress, if the states abuse their discretion, can always restore federal jurisdiction,” but one court has already abused its discretion! So we are brought back full circle to a constitutional amendment. What else is left?
Professor Quirk Replies:
Mr. Chaves is, of course, well intentioned, but, if we follow him, he will lead us off a cliff. The “gay marriage” issue—without a constitutional amendment—is easily winnable. And more than “gay marriage” is involved: We have a good chance at starting to roll back the imperial judiciary.
Mr. Chaves wants a constitutional amendment to bar “gay marriage” in the United States. There are two things wrong with that. The states, not the national government, should define marriage; and in any case, such an amendment, which garnered only 48 votes in the Senate last year, is not going to pass—not this year, not ever. Before an amendment can be sent to the states for ratification, it must pass two thirds of both houses of Congress. The Senate, in recent years, has been the graveyard for amendments concerning term limits, school prayer, flag burning, busing, and a balanced budget. “Gay marriage” will be buried along with the rest. Mr. Chaves needs 67 votes to get past the Senate; the Republicans have 55, and some of them are squishy. Indeed, Karl Rove, after the November election, as much as told Newsweek’s Howard Fineman that the Republicans called for a Senate vote last year, knowing it would not pass, in order to embarrass the Democrats by forcing them to take a pro-“gay marriage” position. That may be entertaining, but it does not move the ball down the field.
Mr. Chaves correctly points out that the Massachusetts Supreme Court has ruled that the Massachusetts state constitution requires “gay marriage” in that state. The governor and the people of Massachusetts can deal with their court as they wish, but what they do is no problem for the rest of us, as long as it stays home. The problem is that the Full Faith and Credit Clause of the Constitution requires each state to accept “the public acts, records, and judicial proceedings” of other states. The Supreme Court will find that Illinois must recognize any Massachusetts “gay marriage,” imposing it on the other states. That’s what happens if we go down Mr. Chaves’ road: We end up with a national rule that is the opposite of the one he wants.
What everyone, including Mr. Chaves, should do (as I mentioned in my article) is get behind H.R. 3313, which uses Congress’ control over the Supreme Court’s jurisdiction to remove “gay marriage” cases from the Supreme Court’s docket. This can be accomplished by a simple statute passed by a majority vote of both Houses and signed by the President. The states would then have the final say. Massachusetts could do what it wants, but its “gay marriages” would not be imposed on any other state.
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