"AMERICAN WEDDINGS"
February 8, 2004

Following the most recent Massachusetts supreme court ruling last week
proclaiming that only gay marriage, and not civil unions, is 
acceptable,
Senate Majority Leader Bill Frist, Tennessee Republican, said, 
"Marriage
should not be redefined by the courts."  And you know what?

He's dead right.

If gay marriages or civil unions are to be recognized, it should be by
ballot referendum or via the elected representatives (who are subject 
to
recall and defeat in popular elections) of each state.  Don't you 
agree?

If you DO, however, then you CAN'T support the notion of a federal 
marriage
amendment banning gay marriages.  That would be just as wrong as 
imposing
them by judicial fiat.  This matter should be resolved by the people 
and
their elected officials in each individual state.  Period.  That's the 
only
philosophically consistent position a limited-government conservative 
who
says he or she supports the principles this nation was founded upon can
take.

Folks are rightly concerned with judicial activism in this case.  But 
let me
ask you another question.  Is the matter of gay marriage the ONLY issue
where judicial activists are legislating from the bench?  Of course 
not.

So if the problem is judicial activism on a wide variety of matters -
including First, Second and Tenth Amendment cases - then why focus ONLY 
on
this one area of judicial activism?  Why not work for a constitutional
amendment which would address ALL forms of legislating from the bench?

Then there's the old "full faith and credit" argument.  Anti-gay 
marriage
folks are worried that once gays start getting married in Ted Kennedy's 
back
yard that they'll move to other states and demand to have their 
marriages
recognized there under the full faith and credit clause of the 
Constitution.

OK.  A reasonable concern.

First, there are legal scholars who maintain that the FF&C clause would 
no
more apply from one state to another as concealed carry laws transfer 
across
state lines.  In addition, the 1996 Defense of Marriage Act (DOMA)
specifically says that one state doesn't have to recognize the gay 
marriages
of other states.  That law has never been successfully challenged.

But let's say it IS challenged.  And let's say some judicial activist 
judge
rules DOMA unconstitutional. Then what?

Yes, that could happen.  Yes, I fully admit that such judicial activism 
is
out of control.  But again, THAT'S the point.  Judicial activism is the
problem, not gay marriage. So any constitutional solution should be to
prohibit judicial activism, not prohibit gay marriage.  Judicial 
activism is
the far wider and bigger disease; the gay marriage issue is but one of 
the
symptoms.

So if a constitutional amendment of some kind is desired to address 
this gay
marriage issue, it makes FAR more sense to pass a Super-DOMA which 
would
simply prohibit federal judges from forcing gay marriages on states 
which
don't want them rather than a prohibition on states that do.

The president has said he would support a constitutional amendment "if
necessary" and if activist judges don't stop legislating from the 
bench.
(That tune may well change in a couple hours on "Meet the Press").  I'm 
far
from convinced it's "necessary" yet, but I do know that if the 
president IS
going to support a constitutional remedy, he should support one to 
restrain
judicial activism which imposes the will of one state on others, not 
impose
a constitutional ban on gay marriage on all states and for all future
generations.

When it comes to weddings, embracing states' rights and eschewing
one-size-fits-all federal prohibitions is, frankly, the American thing 
to
do.  Pass the apple pie.