Wednesday, September 22, 2004

A Question 
I was reading a thread at Daily Kos - If you could ask one question at the debates, and I started thinking about the US Constitution - specifically the 14th Amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I was thinking I might ask about the Federal Marriage Amendment he's pushing, vis-a-vis that 14th amendment and then I thought again ... it occurred to me that the reason the radical Christian right and their most visible spokesman, George Bush, are pushing the FMA so forcefully is that their own considered legal opinion is that the Constitution right now explicitly permits same-sex marriages, and that it's an inevitability that the federal courts will, sooner rather than later, hand down rulings that overturn restrictive state marriage laws. The other side of that, and one that wingers pretend doesn't exist when they say (as they often do) that such things should be left to the states, is the "full faith and credit" clause of Article IV:
Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
Now THAT one - that one says that in the law (although not in fact), same-sex marriage is ALREADY the law of the land, because it is legal in the state of Massachusetts.

It's not likely that the FMA will pass, but it's more than just smoke to hide other administration shenanigans. The FMA effort is, as much as anything else, a shot across the bow of federal judges - touch this issue and you will be a target. So far, the tactic has been moderately effective - but when Justice O'Connor (despite her disavowals re: marriage) invoked the equal protection clause in her concurring opinion in Lawrence v Texas, it signalled that even the Supreme Court itself may be starting to lean that way.

So - maybe the question to ask (though it would no doubt be WAAAAY over Dubya's head) would be something along the lines of "Will you appoint federal judges who believe in the inviolability of the 14th amendment?"

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