Wedlock Amendment No Breach of Federalism

The Washington Times (Washington, DC), June 7, 2006 | Go to article overview

Wedlock Amendment No Breach of Federalism


Byline: Jordan Lorence, SPECIAL TO THE WASHINGTON TIMES

The proposed Marriage Protection Amendment to the U.S. Constitution does not violate principles of federalism. The definition of marriage has never been left to the states.

Some conservatives urge defeat of the amendment because, they say, the Constitution has traditionally left regulation of marriage to the states. But the proposed amendment does not address state power to regulate marriage; rather, it requires states to adopt a uniform definition of marriage of one man and one woman something Congress has imposed upon states seeking admission to the Union for 160 years.

No concept of federalism has ever granted states the authority to define marriage any way they desire. Federalism only grants states the power to regulate marriage already defined as one man and one woman.

For the first half-century of America's history governed by the U.S. Constitution, no one questioned this assumption that all states had to define marriage the same way. The question first arose in 1848, when Brigham Young and the Mormon polygamists of the Utah Territory sought statehood from Congress and insisted on their authority as a state to define legal marriage as including polygamy.

Congress, however, refused to grant Utah statehood unless it banned polygamy in its state constitution. The Mormon-dominated territorial legislature of Utah objected to this condition for statehood for almost 50 years, triggering a great struggle between Congress and the citizens of Utah over state authority to redefine marriage, including several cases that came before the U.S. Supreme Court.(Utah finally gave up its demand for legalized polygamy and became a state in 1896).

The Republican Party itself began as a party opposed to slavery and polygamy in the territories. In its first platform in 1856, the party saw no conflict with its positions on polygamy and state power to regulate marriage when it wrote that "it is both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism Polygamy, and Slavery."

So, Sen. John McCain of Arizona and other like-minded conservatives are simply wrong when they oppose the proposed Marriage Protection Amendment because, as Mr. McCain said in 2004 on the floor of the Senate, it is "antithetical in every way to the core philosophy of Republicans," because "it usurps from the states a fundamental authority they have always possessed." In fact, the Republican Party began as a party supporting congressional authority to impose a uniform definition of marriage on the states, even on states that wanted to define marriage differently.

The threat of state legalization of polygamy compelled Congress to require at least some states to ban polygamy in their state constitutions as a condition of statehood. …

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