Free Pass for Phony Federalists

George Will swoons over Texas Senate candidate Ted Cruz, a strong supporter of the Tenth Amendment (i.e., powers not granted to the federal government nor prohibited to the states by the Constitution are reserved, respectively, to the states or the people). Except, Will neglects to mention, when it comes to state marriage laws, where Cruz loses his federalist principles and (at the very least) vigorously supports the Defense of Marriage Act, barring federal recognition of state-sanctioned marriages.

6 Comments for “Free Pass for Phony Federalists”

  1. posted by Doug on

    Republicans have very flexible policies and standards to fit their own hypocritical bigotry.

  2. posted by John Howard on

    I think the Full Faith and Credit clause says that Congress shall pass general laws prescribe the effect of state acts and records, which are precisely what marriage is. So the Constitution instructs the legislature to make it so states have uniform marriage laws, so that records and acts in one state aren’t rendered meaningless and ignored in another.

    It doesn’t say that states can ignore each other’s proceedings, nor does it say that they must honor each other’s proceedings. There is an “ought” in there, and a “shall”, and the “shall” is a directive: It instructs Congress to resolve disputes with federal laws that set the effect and the manner in which such acts are proved, so that states can give full faith and credit to each other’s laws, as they ought to. The “ought” is not binding on states, it is expressing the desired state of the states to honor each other’s legal decisions and acts, so that Americans can move from state to state without going from married to unmarried.

  3. posted by Houndentenor on

    Where the hell have you been all these years?

    The GOP has always been (at least since I was old enough to vote) hypocritical on the states’ rights issue. (Both parties are, to be fair, but it’s the Republicans who talk about it most of the time.)

  4. posted by John Howard on

    I meant to make more of a point about how it is supposed to be done by general law. Well heck here it is:

    “Full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings, of every other state; and the legislature shall, by general laws, prescribe the manner in which such acts, records, and proceedings, shall be proved, and the effect which judgments, obtained in one state, shall have in another. ”

    So, DOMA does something in precisely the wrong spirit of that. It is a general law passed by Congress to prescribe the effects judgements shall have in another state, but instead of trying to achieve the goal, the “ought to give full faith credit” part, they made laws so that states would not have to give full faith and credit. That’s the unconstitutional aspect of DOMA, not that they passed a law that dealt with state acts and the effect thereof. It’s that they did it in the wrong direction. They should make it so that all the states recognize each other’s marriage, and set the effect of marriage, by general law, in a way that they agree to, so that we can have achieve the “ought”.

    Here are the Federal laws they should pass to do this:

    1) The should say that marriage in every state must approve of and protect the couple’s right to conceive genetic offspring together. No state should be allowed to prohibit a married couple from joining their own genes to procreate offspring. That would be a uniform effect of marriage: approving offspring.

    2) They should by general law prohibit the creation of a human being by any method other than joining the unmodified gametes of a man and a woman.

    Taken together, those would rule out states declaring same-sex couples married, because the second means same-sex couples can not be approved to conceive offspring. This is something that Congress needs to do anyhow, they need to prohibit unethical methods of creating human beings and stop the runaway designer baby entitlement train before it leaves the station, and before anyone gets on board.

    Also, by establishing that no state can have SSM, it makes it much easier to enact simple CU’s uniformly, so that same-sex couples can also have uniform rights when they travel between the several states. States would have to enact them, but I think they all would after they are assured that SSM has been stopped and they won’t become marriage.

    3) Congress should by general law say “The federal government shall recognize state Civil Unions that are defined by the state as “marriage minus conception rights” as if they are state marriages for federal purposes.”

  5. posted by John Howard on

    Doh, that was a draft version I copied above. Here is the final version:

    Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.

  6. posted by Classical Liberal Dave on

    I’m sorry, Stephen, but I’m not convinced.

    What we’re dealing with here is the power of the US government to decide for itself how (and whether) to recognize a cultural institution with legal ramifications in (at least) some states.

    The fact that the US government only has those powers delegated to it by the states does not deny to it the ability to recognize (or not) same-sex marriages in the US legal code. That authority belongs to Congress, not to the states.

    In any event, Cruz states (see the letter he posted to his site) that he favors DOMA as protection against the activist proclivities of the courts. To call him a phony federalist because he does not want activist judges using the laws of one state to deny the rights of the citizens of other states (something which directly contradicts the 10th amendment) is unfair to say the least.

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