- The Washington Times - Sunday, March 21, 2004

The nation is up in arms over the crisis caused by the supreme court of Massachusetts in finding a constitutional right to homosexual “marriage” that escaped the notice of the state’s judges for 220 years, in a document older than the U.S. Constitution itself.

By judicial fiat, a few judges recklessly overthrew centuries of law to suit their own whims in the face of massive popular resistance. So much for America teaching the world about rule of law and democracy as far as the court of the nation’s second-oldest commonwealth is concerned.

President George W. Bush has reacted to the storm of public protest by proposing a constitutional amendment to define marriage solely as the union between a man and a woman, one that would be binding on all of the states.

Naturally, the left has opposed the plan but it has also received significant opposition on the right.

Federalists such as former Rep. Bob Barr say marriage is a state matter and the Defense of Marriage Act protects against the spillover problem of one state’s actions being forced on another by the “full faith and credit” clause of the Constitution.

Some social conservatives, such as the largest organization, Concerned Women of America, reject Mr. Bush’s amendment language because it does not prohibit civil unions between homosexuals to obtain rights similar to marriage.

And many conservatives are concerned the amendment process is too slow and that politicians have focused upon an amendment as a way to do nothing.

The greatest problem with the president’s solution is that it does not go to the root of the problem. The underlying problem has been brewing since the 1960s — and that is judicial activism or, more properly, judicial legislating, contrary to Article I of the Constitution.

The problem today is the courts, and the solution must be aimed at them. If the wrong definition is put in the Constitution, how can it be changed? How does one deal with the federalism issue? And, because it needs approval by two-thirds of each house of Congress and three-fourths of the states, are not its chances of passage slim or won’t it take too long to be effective?

A quicker and more effective solution has been offered by Rep. John Hostettler, Indiana Republican. It would use Congress’ powers under Article I, Section 8 and Article III, Sections 1 and 2 to limit the jurisdiction of inferior federal courts and to set exceptions to the Supreme Court’s appellate jurisdiction.

His bill, H.R. 3313, would remove federal court jurisdiction over the issue of marriage. This goes directly to the root problem and sends a shot across the bow of judicial activism everywhere. Massachusetts legislators could follow the same path if inspired by national leaders and solve their problem now, whereas even a state constitutional amendment would come too late to stop the courts from legalizing same-sex “marriages.” And the bill needs only a majority in the House and 60 votes in the Senate to go into effect.

The problem with the Defense of Marriage Act is that its definition of marriage as a union only between a man and woman applies only to the granting of federal program benefits and merely allows states the right to refuse to recognize single sex unions of other states. What it does not prevent is a citizen of one state that allows single sex unions from going to a federal court in another state, where he relocates, to overrule the other state’s law that refuses to recognize his union.

A federal court could then apply the “full faith and credit” clause to force the states that do not recognize single sex unions to do so with no recourse for the state. H.R 3313 eliminates that possibility.

H.R. 3313 would effectively restrain the courts and still leave the regulation of marriage to the states as the Founders intended. Moreover, it is difficult to see why the national government would do any better job than the states, all of whose legislatures have restricted marriage to one man and one woman. Massachusetts, with the support even of John Kerry, is in the process of passing an amendment to restore it.

Thirty-seven states explicitly forbid same sex unions and refuse to recognize other state laws that do. A few states have adopted the “covenant marriage” legal contract based more on the traditional unbreakable contract ideal that sets more stringent terms for a divorce that individuals contemplating marriage could choose over the no-fault alternative.

Mr. Hostettler’s bill would send a loud message to the aggressive elites on the courts that, thank you, we the people will decide this matter on our own.

Donald Devine, former director of the U.S. Office of Personnel Management, is editor of ConservativeBattleline.com, the American Conservative Union Foundation’s opinion journal.

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