Marriage Amendment alternative language
Sisk, Gregory C.
GCSISK at stthomas.edu
Fri Feb 27 09:46:17 PST 2004
Michael Horowitz in a column today (I give the link below) proposes the
following alternative language for a constitutional amendment on marriage:
Except for distinctions based on race, color or religion, the establishment
of civil marriage in all of its forms, and the benefits thereof, shall in
each state be solely defined by the legislature or citizens thereof, and
shall have such legal force in the remaining states as the legislatures or
citizens of such states shall determine.
Would this satisfy any of the critics on this list of the Federal Marriage
Amendment proposal? Or, to go one step further, would any of them endosre
this provision? It doesn't preclude gay marriage, or civil unions, but
rather does appreciate that the gay marriage question is different from,
say, anti-miscegenation laws, and thus should be part (if at all) of any
evolving culture/social mores only if grounded in the democratic processes
of each state. If the people of one state - acting through democratic
governance - chooses to so experiment with alternative definitions of
marriage, the experiment would be permitted, but no other state would be
obliged to follow that experiment.
In fairness, I don't know that I am yet ready to support this alternative
language, as I am drawn to the argument that marriage is so fundamental and
crucial to societal strength that it should not be undermined in even one
idiosyncratic segment of the country, that is, that this is something on
which experimentation is simply too dangerous. But I'll also say, I could
be convinced that this is a preferable approach for reasons either of
federalism or pragmatism (that is, what is possible to achieve).
Link to full column: http://www.techcentralstation.com/022704H.html
Professor of Law
University of St. Thomas School of Law (Minneapolis)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN 55403-2005
gcsisk at stthomas.edu
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