Posted by
TheChair on Wednesday, August 06, 2008 2:15:43 AM
Up until now, I’ve been linking to news bites covering various aspects of the California political battle over the preservation of traditional marriage. I am now going to begin adding my own, small contribution to the conversation. The future of marriage is the most important issue of our time. It is more important than the economy, and, in my view, even more important than the war on terror. I’ll explain why in a following essay.
Those sitting comfortably, thankfully or smugly in other states, satisfied that California only has to deal with this trouble, could be in for a very rude awakening. The issue brewing here is coming straight to your neighborhood, no matter where you live. Hundreds, probably thousands, of out-of-state same-sex couples are traveling to California and to Massachusetts to solemnize marriages made legal there by the courts. They return home, taking their marriages with them. Whether those marriages will be recognized in their home states will be decided in their respective state courts. How many states will be affected? My guess is all 50.
At least 44 states have state constitutional provisions or statutes only recognizing marriage as between a man and a woman. Four states, including most prominently New York, have no law either way. That’s why it’s no surprise to see gay New York couples so happy to travel to Massachusetts to get married. It’s a lot closer than the other place that can be done, California. Last month, Massachusetts repealed a 1913 law banning marriages of out-of-state couples in Massachusetts if such marriages would be illegal their home states.
So, now, there is a state on either end of the country marrying homosexual couples from everywhere else. Counting the four states without express bans makes six states—right now—where recognition of same-sex marriage is either legal, or probably soon will be. But these couples are not going to confine themselves neatly to these six states. Rest assured they will migrate all over the country, if they haven’t already. And they’ll push for the full panoply of rights all other married couples have. When that happens, the many state courts will have to repeat California’s litigation to decide for themselves whether their state constitutions, statutes and case law permit or require recognition of same-sex marriage.
No doubt some states will subject themselves, via judicial legerdemain a la California, to same-sex marriage. In other words, six states will become 10 or 15. And it’s going to happen quickly. Like Dred Scott’s master, or pro-slavery migrants to Bloody Kansas, same-sex spouses from California and Massachusetts are right now forcing their “peculiar institution” upon the rest of the country which wants no part of it.
[Massachusetts] State officials said they expected a multimillion-dollar benefit in weddings and tourism, especially from people who live in New York. A just-released study commissioned by the State of Massachusetts concludes that in the next three years about 32,200 couples would travel here to get married, creating 330 permanent jobs and adding $111 million to the economy, not including spending by wedding guests and tourist activities the weddings might generate.
“We now have this added pressure, given what’s happened in California, that we really think that it is a good thing that we be prepared to receive the economic benefit,” State Senator Dianne Wilkerson, a Democrat who sponsored the repeal bill, said Tuesday after the vote.
Revenue, revenue, revenue. Do you think California and Massachusetts will be the only states to seek revenue from such marriages? Sure, just like Nevada was the only state to legalize gambling. Does it sound like New York intends to sit on the sidelines?
So, same-sex marriage is spreading. What do we do? In my view, for all Americans who care about preserving traditional marriage anywhere, enthusiastic support of Proposition 8 in California is the best national strategy. Despite the Summer-of-2008 marriages, passage of Proposition 8 here will be seen as a rebuke of the California Supreme Court’s marriage decision. Passage of 8 will once again confine the practice to the single state of Massachusetts. And it ought to serve as a warning to all courts, including federal ones, that the People intend to have their say on this issue.
It is always better to win and let the other side make the legal challenges. California now seeks to preserve marriage by amending its own constitution to read simply:
“Only marriage between a man and a woman is valid or recognized in California.”
Can California do that? Yes, and it will be very difficult for the U.S. Supreme Court to say “no, it can’t.” States have always had the power to define marriage, and birth and death for that matter, as well as each sex. To hold otherwise, the Court would have to simultaneously overturn at least 44 state constitutional provisions or statutes expressly limiting marriage to a man and a woman. A tall order, even for the institution Justice Scalia once branded the “Nine-headed Caesar.”
The anti-8, anti-marriage forces know all this. They desperately want to win California. They see Proposition 8 in some ways as Lee saw Gettysburg. When you have time, go here and review the anti-8 donation stream. Pay attention to the number and strength of out-of-California donations. Why so much from out of state?
http://cal-access.ss.ca.gov/Campaign/Measures/Detail.aspx?id=1302602&session=2007
If Proposition 8 fails, there will be
no remedy for Californians who seek to preserve traditional marriage, other than seeking a federal Constitutional amendment. The U.S. Supreme Court cannot rescue a loss on Proposition 8. It can only uphold or overturn it if it passes. And don’t hold your breath waiting for this or the next few Congresses to muster the 2/3 plus 2/3 majorities it takes to send a federal amendment out to the states.
If Proposition 8 fails, California will be a same-sex marriage factory, even more than it already is. If it passes, we put a lid on the numbers. But if it loses, there is no end. And they’ll come to your state next, and change your law, by hook or by crook, by statute or by judicial fiat.
To put it more bluntly, in the culture war, the California campaign over Proposition 8 has a bit in common with Little Round Top. Getting flanked here could be decisive. Those who care about preserving traditional marriage, and who don’t want same-sex marriage to spread everywhere—including to Mayberry where some feel complacently immune—will want to send money right now to
http://www.protectmarriage.com/. No matter where they live.