Another Perspective

Bachmann and Gay Marriage

Can she have it both ways?

By 6.28.11

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Republican presidential hopeful Michele Bachmann is trying to have her cake and eat it too where it concerns a Federal Marriage Amendment and states' rights.

During an interview with Chris Wallace on Fox News Sunday, Wallace asked Bachmann to clarify her support for a constitutional amendment prohibiting same sex marriage. He played a clip from the GOP presidential debate in New Hampshire earlier this month in which she stated, "I do support a constitutional amendment on marriage between a man and a woman, but I would not be going into the states to overturn their state law."

Of course, this is the same interview in which Wallace asked Bachmann if she was a flake, a question for which he later apologized. Nevertheless, it is a shame Wallace even entertained the idea to ask Bachmann such a question because in so doing it overshadowed some otherwise reasonable questions he put to her. Wallace's transgression against Bachmann also has the effect of obscuring her responses from receiving the proper scrutiny they deserve. With this mind, let's consider this exchange between Wallace and Bachmann after he played the clip from the New Hampshire debate:

WALLACE: That's why I'm confused. If you support state rights, why you also support a constitutional amendment which would prevent any state from recognizing same-sex marriage?

BACHMANN: Well, because that's entirely consistent, that states have, under the 10th Amendment, the right to pass any law they like. Also, federal officials at the federal level have the right to also put forth a constitutional amendment.

With all due respect to Bachmann, her answer is unsatisfactory. The 10th amendment reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

There are only two reasons to support a Federal Marriage Amendment. First, a constitutional amendment that would define marriage as between a man and a woman would prevent any state that has not already enacted a law recognizing same sex marriage from doing so. Second, said constitutional amendment would declare null and void the same sex marriage laws currently on the books in six states as well as in the District of Columbia. Thus the same sex marriage bill that was passed over the weekend in New York would be deemed unconstitutional. Bachmann's suggestion that her support for a constitutional amendment wouldn't involve going into the states and overturning their law is utter nonsense. It is precisely the intent and the effect of a Federal Marriage Amendment.

Let us remember that President George W. Bush's public support for a Federal Marriage Amendment in February 2004 was due in large part because of the Massachusetts Supreme Judicial Council's decision to legalize same sex marriage in the Bay State. Yet it is worth noting that Bush was prepared to include language that would not preclude states from enacting civil unions. But President Bush never tried to tell anyone that he supported both a Federal Marriage Amendment while supporting the right of the Commonwealth of Massachusetts to legalize same sex marriage. If Bush had been successful in getting Congress and two thirds of the states to agree, then not only would the judicial action in Massachusetts have been declared null and void but New York Governor Andrew Cuomo would not have been able to sign same sex marriage legislation into law either. Thus, contrary to Bachmann's assertion, the states could not pass any law they like.

Of course, President Bush would not marshal his political capital in support of a Federal Marriage Amendment. He had more pressing priorities at hand, namely in Afghanistan and Iraq. However, none of this would prevent more than two dozen states from passing constitutional amendments prohibiting same sex marriage. The states are more than adequately equipped to determine whether or not they wish to enact same sex marriage. But Bachmann doesn't see it that way:

WALLACE: My point is this, do you want to say it's a state issue and that states should be able to decide? Or would like to see a constitutional amendment so that it's banned everywhere?

BACHMANN: It is -- it is both. It is a state issue and it's a federal issue. It's important for your viewers to know that federal law will trump state law on this issue.

But in what way would federal law trump state law on the question of marriage? Would her proposed constitutional amendment model DOMA, or would it be guided by a different set of principles or language? Apart from her state during the New Hampshire debate and her response to Wallace, Bachmann hasn't specified what her version of a federal marriage amendment would look like. Until she elaborates further, there must remain a suspicion that Bachmann is trying to have it both ways, simultaneously supporting a Federal Marriage Amendment while supporting the right of New York to pass a law enacting same sex marriage.

Michele Bachmann can't have it both ways. She cannot simultaneously support a Federal Marriage Amendment while supporting the right of New York to pass a law enacting same sex marriage.

In the event Bachmann is elected President, it is possible that she will recognize the impracticality of a Federal Marriage Amendment and wisely attend to more urgent matters. But the fact that Bachmann wishes to involve the federal government in a part of our lives where it has no business ought to be cause for concern for those among us who believe in limited government.

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About the Author
Aaron Goldstein writes from Boston, Massachusetts.