Eugene Volokh, a libertarian law professor at UCLA (and Blogger-in Chief at
The Volokh Conspiracy), along with several co-signers, has sent the following interesting letter to the Senate Subcommittee on the Constitution, Civil Rights and Property Rights in connection with the hearings on the Defense of Marriage Act (in which there was some discussion of the Federal Marriage Amendment):
Quote:
Dear Chairman Cornyn:
We are legal scholars who believe in states’ rights and in limits on federal power. We therefore want to convey our criticisms of H.J. Res. 56, which would amend the U.S. Constitution to (among other things) provide that "Marriage in the United States shall consist only of the union of a man and a woman."
The proposed amendment interferes with the rights of states, rights that have been consistently recognized since the founding of our Nation. Under our federal system of government, family law has long been the province of the states. A basic principle of American democracy and federalism is that government actions that control a citizen’s personal life and liberty -- such as government actions that control people’s decisions about whom to marry -- should be made at the level of government closest to the citizen, rather than by the U.S. Congress or by the legislatures of other states.
States already actively regulate marriage; for example, 37 states specifically prohibit marriage between same-sex couples. That is a choice that they are now free to make. The Amendment will wrongly deny those states -- which is to say, the states’ citizens and their representatives -- this choice.
Of course, the Constitution does impose certain limitations on States, but only when this is needed to protect the national government, the national economy, or individual rights -- for instance, where article I, section 10 prohibits states from creating separate currencies, or where the Fourteenth Amendment requires states to treat people equally. But there is no need to federalize the definition of marriage. If Oregonians, for instance, choose to define marriage more broadly than citizens of other states do, there’s no reason for the federal government to step in. (Nor is such a sweeping amendment necessary to satisfy the narrow goal of letting each state choose whether to recognize out-of-state homosexual marriages. There’s no need to impose a one-size-fits-all solution on the whole nation, either by banning all homosexual marriages, or requiring them to be recognized throughout the country.)
Moreover, if marriage is federalized, this will set a precedent for additional federal intrusions into state power. Once even the traditionally state-law field of marriage is made subject to federal control, it will become much easier for supporters of broad federal power to argue for federalizing still more fields.
Finally, the proposed amendment is not necessary to protect the institution of religious marriage. Under the First Amendment, religious institutions already have the freedom to determine which unions they will solemnize. Even if a state legally allows homosexual marriage, any church within the state has the perfect freedom to refuse to solemnize such marriages (just as the Catholic Church, for instance, refuses to solemnize marriages of divorced people, even though such marriages are quite legal)
The Federal Marriage Amendment is unnecessary; it harms the rights of states and of their citizens; and it thereby undermines the longstanding traditions of American federalism. We urge you to oppose it.
Sincerely,
Eugene Volokh
Professor of Law
UCLA School of Law
Randy Barnett
Austin B. Fletcher Professor
Boston University School of Law
David Bernstein
Professor of Law
George Mason University School of Law
Dale A. Carpenter
Associate Professor of Law
University of Minnesota Law School
David Post
Professor of Law
Temple University Law School
Ernest Young
Judge Benjamin Harrison Powell Professor of Law
University of Texas School of Law
[All institutions listed only to show the signers’ academic affiliations]
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Note that the letter takes no stand on the question of whether states
should permit gay marriage, only that it's
their task, not the Federal Government's, to decide the issue.
(You can guess that he'd view
Roe v. Wade as a matter that would have been best left to the states as well.)
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