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Federalist Fred on Marriage

Ryan Sager, on the trail with Fred Thompson in Iowa, reports that Thompson has come out in favor of a marriage amendment, though of a different sort than one that would define marriage as being between one man and one woman. Thompson would support amending the constitution to ensure that state legislatures, not judges, determine the definition of marriage and to make sure that those states that do not choose to recognize gay marriages would not be forced to recognize gay couples who go out of state just to get married.

I’d like to hear more details, but this strikes me as the proper approach to the issue, so much so that I actually wrote a column last year making a similar proposal. The problem with the proposed Marriage Protection Amendment is that it denies citizens of individual states the ability to decide whether their state should allow gay marriage, which goes much further than merely getting “activist judges” out of the decision making process.

Michael Greve, who is the director of the Federalism Project at AEI, has proposed the possible text of a different kind of amendment that would essentially constitutionalize the Defense of Marriage Act. He wrote:

To guard against the judicial imposition of same-sex marriage from sea to shining sea, a constitutional amendment must guard both against the invention of a federal constitutional right and against the undesired exportation of same-sex marriages from one state into another. Such an amendment might read as follows:

(1) The United States Constitution shall not be construed to require the federal government, or any state or territory, to define marriage as anything except the union of one man and one woman.[7]
(2) The United States Constitution shall not be construed to require any state or territory to give effect to any public act, record, or judicial proceeding respecting a relationship between persons of the same sex that is treated as a marriage under the laws of another state or territory.

Not only would such an approach represent a much more restrained view of federal power, but it would have a much better chance of gaining political support.

In last year’s column, I wrote:

It’s easy for someone to favor state’s rights when doing so benefits one’s own position, but the true test of whether somebody is serious about state’s rights is if that person is willing to tolerate outcomes in other states that conflict with one’s own views. By allowing states to define marriage on their own terms, conservatives would be proving that federalism is not a tactic, but a principle.

Kudos to Fred for making a principled stand for federalism at a time when he could have just as easily come out in favor of the more aggressive amendment to appeal to social conservatives.

UPDATE: Here’s the video.

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