Due to an ongoing health crisis in the family, blogging will be 'on and off' as time and circumstances permit for the foreseeable future. I also beg your indulgence if I am slow in responding to emails. New posts will appear below this notice.

Saturday, September 08, 2012

Three states say feds can't 'unmarry' gay couples (state's rights)

Three states where members of the clergy and justices of the peace today marry gay couples argued on Friday that it’s a violation of states’ rights for the federal government to then “unmarry” those people under the 1996 Defense of Marriage Act (DOMA).

In an amicus brief to a New York case involving a lesbian widow, Vermont, Connecticut, and New York argue that the federal government had no right, despite the federal designation of marriage as being between a man and a woman, to demand $350,000 in estate taxes when Edie Windsor’s partner died. That would not have happened under a marital tax deduction that lets other married couples pass their assets to their spouse without penalty.

The three states who filed amicus briefs argue that states regulate marriage and family relationships and that Congress doesn’t have constitutional authority to interfere with that license at any level.
Read the rest here.

I think they are right purely on the legal and constitutional points. This is a tenth amendment issue. No where does the constitution give Congress any power over marriage. Of course the smart thing to do (which by definition means it won't happen) would be for the states to expunge the word "marriage" from the legal code and replace it with "civil union" for everyone. Leave marriage for religious institutions and let the state provide for the regulation of voluntary contractual unions for the purposes of benefits and the like.

6 comments:

Anaxagoras said...

I'd never thought I'd say this re: politics on your blog, but you're exactly right.

Anonymous said...

You are right, and many have been saying this for so long, why don't policy makers ever bring up this idea for debate? I just don't understand it.

Unknown said...

My cousin was recently married in Germany. She had a "civil ceremony" the week before the "religious ceremony." Just so I am clear, are you advocating for a similar thing here--to have a civil wedding and then a church wedding (if one desires) or would a church wedding still be recognized as valid by the state?

I agree with your take on the legal and constitutional arguments, btw.

Andrei said...

Leave marriage for religious institutions and let the state provide for the regulation of voluntary contractual unions for the purposes of benefits and the like.

And thus help transform the United States of America into a later day Soviet Union.

Everything Big Government gets its paws on it wrecks, without exception.

The Big Governments foray into marriage as it stands today has not lead exactly made the institution more robust now has it.

Fr. John Whiteford said...

Your approach may sound appealing, until you consider the radical implications it has for family law in this country. Do you want to, for example, remove the presumption of law that children born within a marriage are the children of the parents in that marriage? If not, do you want birth certificates to list two moms, and no dad? Or should we just do DNA testing for every child born, and have the government certify who their actual parents are? Do you really think it is in the best interest of orphaned children to act as if two gay men who are married are just as fit to adopt a child as a married man and woman?

The Anti-Gnostic said...

John is correct. The federal government was simply never given the mandate for regulating marriage. (And a lot of other things.) But Fr. John is right too, and the view that we'll just let the mosques, temples, synagogues and churches regulate marriage and everybody can just get along is completely naive.