Today the Cato Institute is publishing a paper I've written on why a federal amendment banning gay marriage is a bad idea, even if you oppose gay marriage. Of course, if you think recognizing same-sex marriages is a good idea, that's a strong reason by itself to oppose an amendment banning them. This paper is written for conservatives and moderates who either oppose or are unsure about same-sex marriage. Here's the executive summary:
Members of Congress have proposed a constitutional amendment preventing states from recognizing same-sex marriages. Proponents of the Federal Marriage Amendment claim that an amendment is needed immediately to prevent same-sex marriages from being forced on the nation. That fear is even more unfounded today than it was in 2004, when Congress last considered the FMA. The better view is that the policy debate on same-sex marriage should proceed in the 50 states . . . .
A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it, on grounds of federalism, confidence that opponents will prevail without an amendment, or a belief that public policy issues should only rarely be determined at the constitutional level.
There are four main arguments against the FMA. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.
Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.
Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.
Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.
The paper goes into some detail responding to the common arguments for a federal amendment on this issue, most prominently the facile judicial-activism argument. You can read the whole thing here. While there is a reasonable (though ultimately unpersuasive) argument to be made against gay marriage as a policy matter, the case for a constitutional amendment is very weak. And it is weak for good conservative reasons.
I'll be in Washington on Monday speaking to Cato and the Center for American Progress, as well as to congressional staff, about the proposed amendment. When the schedule is available publicly, I may update this post to let you know more.
UPDATE: A number of commenters have made responses and criticisms based solely on reading the short summary of the paper provided above. The paper itself goes into some detail on almost all of the criticisms made — for example, on questions of how and why the fear of judicial activism on this issue is overstated, why and how the amendment is unprecedented in our history, and just how broad its reach may turn out to be. I encourage readers, once again, to read the whole thing before commenting.
One error in the comments, in particular, needs more detailed attention because it illustrates how some supporters of a federal amendment have deployed misleading arguments about judicial activism. This particular error repeats the common mistake of claiming that Lawrence v. Texas led to the result in the Massachusetts marriage case, Goodridge v. Dep't of Public Health. As I point out in the paper, Lawrence has been read very narrowly by other state and federal courts (often too narrowly in my view). No federal court anywhere at anytime has ordered the recognition of any gay marriage. While the Goodridge court cited Lawrence a handful of times for unexceptional propositions in its 30-page opinion, the opinion is remarkable for its lack of substantive reliance on Justice Kennedy's work in Lawrence. In fact, here's what the Goodridge opinion said about Lawrence on the precise question of gay marriage:
Whether the Commonwealth may use its formidable regulatory authority to bar same-sex couples from civil marriage is a question not previously addressed by a Massachusetts appellate court. [footnote omitted] It is a question the United States Supreme Court left open as a matter of Federal law in Lawrence, supra at 2484, where it was not an issue.
Goodridge, 798 N.E. 2d 941, at 948 (emphasis added).
Notably, none of the suggestive and flowery passages in Lawrence that are said to support claims for gay marriage appear in the Goodridge opinion. Reading Goodridge as a whole, there is no doubt the Massachusetts court would have reached its result without Lawrence. This, by itself, doesn't mean that there's no potential for judicial activism on the gay-marriage issue, but it does undermine the claim that developments in the Supreme Court are leading us down a quick path to nationwide gay marriage. Judicial action on this issue in the coming years is most likely to come from the state courts interpreting their own state constitutions. But, as I note in the paper, the states themselves have always been entrusted to rein in their own state courts if they choose to do so.
Related Posts (on one page):
- The amendment is dead, long live the amendment:
- Gays, Federalism, and Minority Rights:
- Video of panel on marriage amendment now available online:
- The New York Times and the federal marriage amendment:
- Bush to retract support for a federal marriage amendment in Monday speech, news report says:
- Is the Federal Marriage Amendment Consistent with Federalism and Democratic Values?
- Another prominent conservative against a federal marriage amendment:
- Is Marriage a Federal Issue?
- Against a constitutional amendment banning gay marriage:
I would prefer a constitutional amendment that said there is not right to a gay marriage rather than the current version, but how many such amendments would be needed for various rights people wish into the consitution.
Perhaps what is really needed is a constitutional amendment that says no new rights shall be infered by courts. Squaring with the 9th amendment would be difficult but could be based on rights existing in 1791.
As for Dale's arguments, I don't find them particularly persuasive, but I'm neither a libertarian nor a conservative.
You say: "The size of this majority is unlikely to decline much more in the near future."
Why would this trend stop? The basic dynamic in states where gay civil unions and marriages have started is that initially there is a great deal of concern about what many people see as experimenting with a crucial institution. But after this "experiment" starts and people see that the sky does not in fact fall, the opposition steadily wanes. And people in other states are capable of looking across state lines and observing all this as well.
In short, increases in familiarity with actual gay civil unions and marriages tends to lead to decreases in people's concerns about them. And I see no particular reason to believe that trend will stop.
Of course, I assume that is really what most people in favor of rushing through the FMA now are thinking--they are just as aware of the trends as I am, and they are in fact concerned that they will eventually (and perhaps soon) be in the minority in many states, and they want the protections a federal amendment would provide to such minorities in many states.
But it is very likely too late anyway for passing such an amendment. So, this is all just political theater.
The fact that certain Congressional Republicans are proposing a constitutional amendment to ban same sex marriage, a right which has never been declared to exist in the federal constitution, but not proposing any such amendment to reverse Roe v. Wade, which has been around for decades, is a perfect example of why the proposed anti-SSM amendment has nothing to do with concern about courts and SSM, and everything to do with election year political pandering.
Before state courts raised the issue of homosexual marriage and the homosexual propaganda apparatus got going, a vast majority of Americans were opposed to homosexual marriage.
In other words, arguments are being raised in favor of SSM and as a result public opinion has moved significantly on the issue over the past few decades. Oh the horrors of democracy in action.
A significant majority still are. The size of this majority is unlikely to decline much more in the near future.
You have any basis for this view? Opposition to SSM has declined precipitously over the past few decades, why would that process stop now? And if, as you seem to concede, that opposition will continue to decline beyond the "near future" why have a constitutional amendment now to forestall the democratic process?
An amendment now will forestall an endless debate on this issue that will dirty the political waters for years to come.
Yes, the way that Prohibition forestalled debate on the consumption of alcohol.....
Without the amendment, a majority of the population is going toi be politically frustrated, seeing their position being gradually chipped away by the intelligentsia. Let's get this debate over with now and move on.
In other words, you're gradually losing in the court of public opinion and you need a constitutional amendment now to prevent state legislatures from enacting SSM. That is to say, the anti-SSM amendment is all about stopping elected state legislatures, and has nothing at all to do with courts.
You raise an important question. Equality under the law is Constitutionally guaranteed. Much of this debate hinges on what exactly constitutes equality.
The Pro FMA (Federal Marriage Amendment) side argues that gays and lesbians have the same rights as heterosexuals, both groups can marry someone of the opposite sex. Both groups are equally prevented from marrying someone of the same sex. As such, the argument goes, they are treated equally.
The Anti FMA side argues that equality demands equal treatment in regards partner choice - that since gays and lesbians are arguable genetically attracted to the same sex and that they love someone of the same sex in the same manner as heterosexual couple can/do, equality demands they be afforded the same protections and privileges of marriage that are given to heterosexual couples.
Not the best explanation, but i'm sure other's can improve on it.
I'm instinctively in favor of the FMA. However, concerns raised do trouble me. However, what about instead of the FMA we have a Constitutional amendment stripping jurisdiction of the federal courts over gay marriage. Granted, there are likely numerous problems over the construction and wording of the amendment, but if it can be constructed without being overbroad, it would ensure that this political hot potatoe is left to the states - especially important since the Anti FMA seems to rely so strongly on the federalism argument (which I find rather ironic, but that is a seperate issue).
The problem with jurisdiction stripping approaches (or one such problem) is that you leave the last word on the meaning of the federal constitution to state courts, including, for example, the Massachusetts Supreme Court that authored Goodridge. If anything, that would make it more likely that SSM would be declared to be a right within the scope of federal equal protection or due process by state supreme courts in the very blue states. And how would the federal government react to that, since it won't be able to seek judicial review of those decisions in the US Supreme Court.
I found your discussion of the Lawrence v. Texas case incomplete/disingenuous. Did not the Mass. Supreme Court in Goodrich specifically cite Lawrence as a basis for arguing in favor of SSM despite the specific pronouncements in Lawrence that it was limited in scope? Granted this is a state court, but for judges who seek their own ideological ends (9th circuit, etc), Lawrence has already been shown to provide a framework for their decisions despite what you and SCOTUS say. So forgive me if I find your arguments of "not to worry" rather unpersuasive.
I honestly don't have much of a problem with Mass having gay marriage. I never intend to live there, and as long as their marriages can't be imposed on my own state (or SSM imposed by the courts on the country as a whole), I'm fine.
The challenge for this argument is to explain why a law prohibiting you from marrying someone of a different race isn't also constitutionally permissible equal treatment, since the law applies equally to everyone, regardless of race.
The Anti FMA side argues that equality demands equal treatment in regards partner choice - that since gays and lesbians are arguable genetically attracted to the same sex and that they love someone of the same sex in the same manner as heterosexual couple can/do, equality demands they be afforded the same protections and privileges of marriage that are given to heterosexual couples.
I think the equality argument (as opposed to the due process argument) is a gender based one. Only men are permitted to marry women, and only women are permitted to marry men. Thus, if want to marry someone, you'll be permitted to do so or prohibited from doing so depending on your sex, thus sex discrimination, thus not equal treatment.
There's also a weaker argument (at least the way that constitutional law has developed) based on sexual orientation, that is to say, heterosexuals are allowed to get married, but homosexuals are not, thus unequal treatment, thus violation of equal protection. However, not every distinction between one group and another is unconstitutional, and this particular distinction, notwithstanding Lawrence v. Texas would probably be assessed at a more lenient standard than the gender discrimination argument set out above.
The FMA would never had been proposed if state courts hadn't grossly overreached on imposing SSM.
The perfect argument then, for opposing the anti-SSM amendment, since I assume you would be equally distressed by a federal prohibition on SSM, applicable to all 50 states, regardless of what the citizens of a particular state may wish to do.
I see it as calling the bluff of both sides. The pro SSM marriage side appeals to federalism as way to prevent a FMA and to protect what SSM there is. The Anti SSM side appeals to federalism in the fear that it will be imposed by the federal courts on the states. Lets solve those fears in one stroke. Prevent the federal courts from ruling one way or another.
By this, we force the confrontation into the open. No more hiding behind judicial mandates for the pro SSM side (along the likes of a SSM Roe decision) which alleviates the primary concern for most anti SSM individuals (not Falwell of course). And the pro SSM concerns of federalim are assuaged (if those are truly the concerns). Then let the chips fall where they may...
Just an aside, but we probably don't need a constitutional amendment to limit the jurisdiction of the federal courts when it comes to gay marriage (or, for that matter, marriage in general). It could likely be done by statute.
Yes, but naturally i'm more concerned with own pet causes than for those I disagree with (just a bit of honesty). I'd still prefer a FMA if there is no other way of preventing the imposition of SSM by the federal courts. But my point is maybe there is a way to partially defuse this brewing political firestorm
Yes, I know. From my rather rudimentary understanding of jurisdiciton stripping, Congress can remove appellate jurisdiction from SCOTUS over topics like gay marriage. However, that would just mean that the circuit court decisions couldn't be overturned. Which would leave for examples the relatively liberal 9th setting gay marriage policy for all the more conservative states in its circuits, not just California. I'd rather reduce it completely to the state level if possible.
Gay marriage is clearly not a federal issue, but I don't see how it is a state issue either. It seems to me to be a church issue. I've never heard an argument against gay marriage that wasn't couched in religious bigotry, so why don't we let individual churches decide whether or not they would like to marry a gay couple? Let's keep the government out of it.
One possible argument is that having gay couples raise children might present some problems for their child later on in life. Well, besides the fact that they could raise them without being married, most of the research seems to suggest that this is not the case. That being said, let's imagine that it was; how is this any different from growing up with a single mother? Or with black parents? Or with poor parents?
Being the child of a single mother/black parents/poor parents all significantly raise the chances that a child will have problems later on in life--so should you not be allowed to have children if you're a member of any of the above-mentioned groups? Should we just okay everything we do with our local clergy?
Considering that being a homosexual is not a choice, I don't see how banning the marriage of homosexuals is any different than banning the marriage of two white people.
...based soley on their race, that is.
cp,
I'm just a law student (and a physician). But I'll try too.
First, it's sometimes hard to determine the practical consequences of the prinicple of equality when there are fundamental differences among people. Should everyone in your state have an equal opportunity to get into the state university (run an admission lottery) or should they have equal access to taking an entrance exam (obviously there are other ways to run the admissions process).
Second, there are fundamental differences between men and women. This has given rise to various argumets about whether states should be able to educate boys and girls separately, whether tVeteran preferences in hiring are permissible, etc. These have been resolved in different ways.
Third, if the purpose of marriage (from the point of view of the government) is to regulate reproduction and childraising, there are reasons for
restricting it to heterosexual couples. But not everyone agrees that this is the purpose of marriage.
Finally, not everyone agrees that the prinicple of equality trumps other principles that enter into marriage. Certainly, liberty may play a part. Do you want your spouse chosen for you by lottery so that all eligible partners have an equal chance to marry you? But then some people who are more attractive mates than others have a better chance of getting married to a desrable spouse. Others-- and these include many opponents of gay marriage-- believe that heterosexual relationships are preferable to homosexual ones, and that this, for a variety of reasons, is sufficiently important to trump putative equality rights with regard to marriage, even if they are willing to extend equality to homosexuals outside the domestic and reproductive spheres.
Assume you and your mate are living in a state that permits gay marriage so you get married. You and your now spouse are transferred to a state that does not permit gay marriage. While resident of that new state, you now start having problems and decide to get divorced. How do you go about doing this?
Your current state of residence does not permit gay marriage so are you considered married at all. If you are not married then how do you handle the distribution of assets and the severing of the marriage. If you move back to your original state, then you have the divorce issues to deal with whereas in the other state you do not. If the state does not permit marriage, then suppose you petition for a divorce. Do they have to let you get a divorce based on the marriage from state 1? If so then the other gays have a case for petitioning for marriage in the state that does not allow it or... Anyway the problem is obvious in that marriage and divorce are available in one state and not available in another. Does that mean that the not available state has to recognize your marriage even though other residents of that state cannot get married?
I think this is the reason that anyone is even thinking of a constitutional amendment. These questions will have to be answered if gay marriage is allowed in some states or else the federal government will need to override the state laws on the subject. Somehow the question of state to state relationships on the question need to be determined much as the commercial quesitons between states have been. Hiding the question just makes it worse when it comes out and then there will be pressure for a rushed judgment on what the rules need to be.
For example:
Can I as an employer give insurance to a heterosexual spouse but refuse it to a homosexual spouse?
Can I as a landlord refuse to rent to a married couple who are of the same sex?
And more generally, can I as an employer refuse to hire a homosexual. Does it make a difference if they are playing the piano in my bar or my church?
As long as marriage is state sanctioned and that sanction has consequences, the consequences of homosexual marriage is against freedom.
Normally I would say let people contract as they want, but why is someone outside the contract forced to accept it?
Positive Dennis
That's my $0.02.
Although I better understand the argument that is being made on this point, I think it just makes me disagree with the argument itself more. It just seems that the argument seems to boil down to, equality: as long as you agree with me. Or, "You have equal right to live your life like I do." I know I'm not saying anything new or insightful here, just what strikes me while hearing the argument. Thank you again for your answers.
Houston Lawyer: That's an excellent point about why the FMA is even an issue, and it ties into something I think people tend to forget when they call Constitutional Amendments "overkill" or "unprecedented," which is that Constitutional Amendments simply are the mechanism that was created for this country for dealing with issues totally and completely as a matter of first principle. If the States adopted a Constitutional Amendment barring Eugene Volokh from speaking... well, then Eugene Volokh would be forbidden to speak. (A terrible tragedy to be sure, but it illustrates the point nicely.) If an amendment turns out to be unworkable, or not really worth the effort, or times change, then we can re-amend. It's democracy (which can be a fairly scary thing if you think about it) at its absolute worst: no checks, no restraints -- nothing but pure fiat. Of course, that's the nature of man's existence in the "nasty, brutal" world once you reduce it and strip it of philosophy, religion, and reflection. So in the end, we can only hope that these things -- our moral principles -- inform our democratic decisions in some sense.
Which brings me to my next point.
Cornellian: Yes, it's discrimination. But discrimination is obviously not illegal per se, although certainly large components of our society are working to make it so. We don't question a person's ability to discriminate among friends, the government's ability to discriminate among the intelligence of engineers it hires to build computer systems, or a whole host of other issues. For many years, it was fine to discriminate on race. Now it is holy writ (or as near you can get in this society) that racial discrimination of almost any type is simply verboten.
The "constitutional" question is and always has been the strength of the state's interest, and the level of interest that we are going to require in order to allow a certain type of law. Obviously, a constitutional amendment renders any sort of constitutional inquiry a moot point -- we are, after all, talking about the process by which our legal system arrives at first principles. But it's a legitimate question whether a given society wishes to outlaw or discourage a particular type of behavior. If the entire country wants businesses to close on Sundays, you know what's going to happen?
You're going to buy your eggs on Saturday.
But we apparently have a right to be able to (at least sell) eggs on Sunday, because the first amendment prohibits the establishment of religion and protects the free exercise thereof.
Which brings me to my next point:
SLS 1L: Your argument is essentially that rights are not truly discrete, that it is impossible to determine whether a particular right is its own right or some manifestation of another right.
Which is more or less the reason that certain people think the FMA is necessary: because they believe it has become impossible to determine whether a right is really something in the Constitution or whether the courts are legitimately extended rights already present in the Constitution.
Now, in my opinion, the 9th Amendment more or less takes care of this issue. Gay marriage is not and should not be a federal issue because it's not mentioned by name in the Constitution. (I'm not a "literalist" so much as I am a Constitutional "reductionist" -- if it's not solidly and unequivocally part of the Constitution, it's not a federal question for me.)
But it's important to balance even my view with the notion that a people -- just like an individual -- are(is? are? I think a people probably "are" even though it's grammatically incorrect) or at least should be able to define themselves. If the people wish not to sell eggs on Sunday, or wish not to allow rappers to talk about f***ing their h*s, or wish not to allow the citizenry to wear revealing clothing, I think there's a very plausible and sensible argument to be made that the people should be allowed to have such laws.
As I said above, it's a question of religion, philosophy, and reflection, because ultimately what is "legal" is whatever we say is legal.
-Michael E. Lopez
Congress can limit the subject matter jurisdiction of the District Courts and the appellate jurisdiction of the Courts of Appeal as well.
MDJD2B,
You say: "if the purpose of marriage (from the point of view of the government) is to regulate reproduction and childraising, there are reasons for restricting it to heterosexual couples."
That does not necessarily follow. First, marriage may serve other social purposes in addition to reproduction and childraising. Second, gay couples are capable of producing children (albeit not with genetic material from both parents, but that is true of many straight couples as well) and, of course, of raising children. Third, even marriages which do not involve producing and raising children may indirectly provide support for marriages which do involve producing and raising children. Finally, even if gay marriages did not in any way further this interest, that may not justify the restriction insofar as gay marriages did not actually harm this interest.
dick,
These issues are not new to gay marriages, because state laws with respect to the validity of marriages have varied for other reasons as well. The basic answer is no, a state does not have to recognize a couple as married nor as subject to the state's laws governing divorce if that couple's marriage would not be allowed under that state's laws.
Assume you and your mate are living in a state that permits gay marriage so you get married. You and your now spouse are transferred to a state that does not permit gay marriage. While resident of that new state, you now start having problems and decide to get divorced. How do you go about doing this?
States already cope with this situation today, since different states have different rules as to who can get married (minimum age for marriage, whether cousins can marry etc.). A marriage valid in state A is not valid in state B unless state B wants it to be valid. That's the way it's always been and all those issues you list can be dealt with the same way they are now.
I think the public debate has been very healthy. I've switched sides on this debate based on the evidence, and I'm willing to switch sides again based on new evidence.
Goodridge was a travesty, but I don't live in Mass. On the other hand, if courts start saying that Alabama must recognize SSM made in Mass., that's a completely different story.
Sounds like the FMA is promoting the libertarian position on Dom Rel law. It outlaws the states from regulating SSM. SSM's can still be established by the parties. All they have to do is find a church.
Now all libertarians have to do is find out a way to prevent state regulation of OSM and the rest of us can be freed from state oppression.
Return Dom Rel law to private institutions like the Catholic Church, the Anglican Church, the Coven, etc.
On what basis do you make this statement? Exactly one state court (Massachussetts) has made gay marriage legal, and has limited it to residents of that state. The decision was based on the state, not federal, constitution. So unless you are a Massachussetts State Constitution scholar (and I doubt you have much call for arguing Massachussetts constitutional issues in Texas), you really don't know what you are talking about.
This would head off both the Due Process/Equal Protection type arguments as well as the Full Faith and Credit Clause. At the same time, if one state wishes to recognize SSM, then it is free to do so. Call it DOMA LITE, if you will.
From a federalist viewpoint, this has obvious advantages. IMHO, it also has advantages politically. If someone opposes this, one can argue "You see, what they really want to do is use the courts to force something down our throats, or use one State to control the other 49!"
Why those in Congress don't adopt such a version is hard to explain. Then again, they seem to have a talent for shooting themselves in the foot.
Anyway, what objections, if any, would there be to a DOMA LITE?
If I'm reading this correctly, you mean to say "why should I have to accept gay marriage if I don't approve of it"? If this is an incorrect reading, then please clarify as to what you meant in your last sentence.
Why do we have to accept gay marriage? For the same reason we have to "accept" women's suffrage, civil rights for minorities, ridiculous religious beliefs, etc. Just because some action is legal does mean that you tacitly approve of that action. It is just prudent to maximize our personal liberties; you can choose which liberties to realize and those you'd prefer not to realize. If you don't like gay marriage, then don't get married to a person of the same sex! I personally think religious beliefs are downright stupid, but I don't call for religion to be banned, I just don't practice religion.
Whatever happened to the "live and let live" attitude that is the backbone of principled conservative political philosophy?
Exactly! This is the truly libertarian position. Let individual churches decide if they will allow SSM. Making SSM legal is not the same as forcing churches to marry homosexuals.
For conservatives, who have seen the right to abortion at any time read into the the constitution between the 'shades and penumbras' of freedom from unreasonable search and seizure, the entire point is to prevent a single wayward state legislature and the ever active federal courts from foisting another travesty for traditional values on the rest of the nation. You're not going to convince them that it's better to leave it to debate and the tender mercies of the courts. Been there, done that. To gay-marriage abolitionists, your argument is essentially that the issue should be left to the sanctity of states' rights. fat chance.
As for your first point that the current state legislatures make it 'unlikely in the forseeable future,' that is a matter of policy, not constitutional law, so again you're not going to convince anyone not already solidly on the side of gay marriage.
The sole appeal to principles applicable to both sides of the debate is your second point, that it would be an unprecedented new federal reach into an area traditionally reserved for the states. On this point you are greivously wrong. Since the 60s, the federal courts have seen fit to extend federal jurisdiction over state laws regarding condunct conducted between man and wife, or, more recently, any consenting adults, in regards to all areas of family law, with the sole exception, to this point, of marriage laws. But there is no reason for a conservative to think that the push to add ever more previously state legislature defined behaviors, starting with Griswold and most recently added to with Lawrence, under the ever-epanding federal umbrella. There is little doubt that marriage will be the next to go. Coservatives are aware and resigned to this fact. The best hope the American people have to ensure that their overwelmingly popular will is carried out without interference from judges all too willing to impose their own view, is a constitutional amendment that limits the scope of judicial interpretation to one in line with the vast majority of citizens.
Well, aside from 1878's Reynolds v. United States ruling about polygamy. And the entire circumstances surrounding the admission of Utah as a state. And the Enabling Acts for New Mexico, Arizona, and Oklahoma, all of which also required those states to ban polygamy.
I disagree. I would not consider "being a homosexual" a state of nature in the same respect that race is a state of nature. If you think they are, would you also agree that "being a pedophile" of "being a polygamist" are also states of nature in the same respect? If not, why not?
Cornellian,
That's easy. So called "sexual orientation" is not a constitutionally protected class. Amend the constitution then come back and we can discuss it.
You say: "SSM's can still be established by the parties."
Again, though, part of the problem is that states do not in fact allow private parties to create the complete equivalent of marriages through private contracts. So, you would also have to lift these restrictions on contractual rights.
I think this begs the question and in the process gets things exactly backwards. My reading of the FMA is that it does NOT prevent a state legislature from adopting gay marriage. (There have been several versions of the FMA proposed. I've not checked the wording of the version that's going to be debated by the Senate.) Instead, it prevents the federal and state courts from taking this public policy question away from the legislature. It's not as if a bunch of people woke up one morning and decided to propose the FMA. Instead, after gay activists failed to persuade the public to their point of view, they succeeded in persuading a court to impose their view on the people. So, the purpose of the FMA is NOT to determine this question "at the constitutional level." The purpose is to PREVENT that from happening.
Just as it is possible to support legal abortion AND believe that Roe was the wrong way to reach that result, it is possible to believe that the court is the wrong forum for resolving this question. Yes, as Professor Carpenter and others have argued, such questions should not be dealt with in the Constitution. However, if the courts have resorted to the Constitution to answer this question (which it is argued should NOT answer such questions), why is it wrong to PREVENT the courts from doing what the good Professor argues should not be done? The FMA does not resolve the debate on the public policy question. It simply ensures the debate will be had in the proper forum -- the legislature.
No church will be forced to perform SSM, even if it is legal in all fifty states. There is not one church in this country who is forced to marry anyone they don't want to. They can discriminate on the basis of race, religion, marital status (try getting married in a Catholic Church if you are divorced), national origin, or any reason they, or the individual pastor sees fit. To imply that any church will ever be required to marry a homosexual couple is to simply create a controversy that does not, and never will, exist.
Just a small point, but there is nothing in the 14th Amendment limiting its application to some "protected classes". The Supreme Court has simply held that certain classifications merit greater scrutiny than others. Of course, the point Cornellian was making is just that there is in fact unequal treatment here, regardless of whether that treatment is unconstitutional.
Senator Hatch proposed something along these lines early in the FMA debate, an amendment that would simply have left the matter up to the states and specified that a state didn't have to recognize a marriage valid in another state. However, his idea was quickly shot down by the religious right. Senator Hatch apparently didn't get the memo that the real point of FMA is not to stop courts, but to stop state legislatures.
Talk about whistling past the graveyard.
Since what has federal and state law + relevant constitutional doctrines meant a thing when you have 5 SCOTUS Justices looking for a way to do something?
"Foreseeable future"? I give it 3 years, tops and Stevens, Kennedy, Souter, Ginsburg and Breyer will find a way; federal law, state law and constitutional doctrines get trumpted by citations to what the European courts are doing and 5 Justices looking for an excuse to advance their agendas.
When that day comes, hope you have salt on hand so you can eat these words.
That's easy. So called "sexual orientation" is not a constitutionally protected class. Amend the constitution then come back and we can discuss it.
The issue of whether something is a protected class only comes up if you have discrimination in the first place. My race specific example is only a constitutional problem if it constitutes discrimination based on race, so my point stands.
I'd also add, incidentally, that the 14th Amendment only provides for equal protection without reference to race, gender, sexual orientation or any other class.
There is not one church in this country who is forced to marry anyone they don't want to.
Yet. That's next.
I believe the current version of the FMA starts out by saying that marriage in the United States shall consist only of a union between one man and one woman. Pretty hard to reconcile that with a state legislature adopting SSM.
I think you need to check the actual text of the FMA.
Also, I'm not sure I understand why you think that the power of state courts pursuant to their own state constitutions is a matter of federal concern. In other words, if the people of State A have created more powerful courts and more constitutional rights than the people of State B, what justification do the people of State B have for objecting?
Yet. That's next.
Yeah, right, right after the Catholic Church is forced to conduct marriage ceremonies for divorced people. Don't hold your breath.
Well, that's an easy one. Being a polygamist is a definite choice. I am not going to comment on what "causes" pedophilia because I am not psychologist or psychiatrist but I will comment why it would be perfectly acceptable to condemn pedophilia even if it was a "state of nature" while it is wrong to condemn homosexuality. Pedophilia harms innocent parties, children, homosexuality does not. That is the distinction, even if both are "states of nature".
I don't know that I agree that there is unequal treatment. The history of Western civilization has been to define marriage as between men and women, and for the most part between one man and one woman. Regardless of whether you desire to marry someone of the same sex or someone "too young" or someone already married, you are denied to do those things. But you are free to disregard your desires and marry someone of the same sex, someone who is "old enough," or someone not already married. What's unequal? That society does not treat all desires as equally valid? ... As for interracial marriage, clearly the constitution does not permit discrimination by the government based on race. (And I'm glad it does not!)
It will not work.
The courts have previously held that the 14th Amendment was a restriction on Art III Section 2's grant of power to Congress to strip the courts. And if you think for a second a "mere" statute will stop the court from finding some way to find the court stripping statute(s) unconstitutional, you are blissfully naive.
The court will claim that a "mere statute" cannot remove the "right" to an appeal and the "right" to gay marraige they will invent under the 14th Amendment.
Conservatives who think the courts will be restrained by something like a statute are just frankly, bluntly, idiots. Nothing short of a Constitutional Amendment (or maybe some selective impeachments, but this is a maybe) is going to stop the courts.
If this is what you came away with, then you don't understand the arguments.
Prohibiting marriage between given people does not prohibit anyone from living in any way they choose. For example, many states do not allow siblings to get married, but if you choose to live with and have children with your cousin, then (unless it violates some other incest statute) then the only thing you don't have is recognition of the state. You can even contract with your cousin to share property and do other things that married people do, with a few exceptions related to co-ownership of land.
What marriage does is to confer state recognition and some kind of approval on a relationship. The question in marriage is not whether gays have an equal right to cohabit or to have children, but whether they have the same right to enjoy government sanction for these activities.
Some people, such as Stanley Kurtz, have suggested that there are empirical harms that have resulted from gay marriage where it has been instituted. I don't know if he is right, and won't recapituate them-- you can Google if you are interested. One is decline in birth rate-- do you want your generation to support gazillions of people in mine? To the extent that one believes this, one may consider that preventing these harms is more important than sustaining the principle of equality, just as we tend to feel that the concrete benefits of preventing marriages among close relatives allow us to suppress the liberty and equality interests that would otherwise allow them.
Generally, people wanting to regulate behavior have more concrete reasons than personal preference, and you should make an effort to understand them. In this case it may boil down to religious principles or moral principles that are incommensurate than yours, but there are also possible empiric consequences of these such as unstable families and changes in birth rate that governments traditionally have a legitimate interest in.
"Foreseeable future"? I give it 3 years, tops and Stevens, Kennedy, Souter, Ginsburg and Breyer will find a way; federal law, state law and constitutional doctrines get trumpted by citations to what the European courts are doing and 5 Justices looking for an excuse to advance their agendas.
So we amend the Constitution, this nation's founding document, based on what a bare majority of SCOTUS (one of whom is in his 80's) might possibly do in a case that doesn't exist yet? This argument for the FMA and the lack of any parallel argument for an amendment reversing Roe v. Wade, which has been around for decades, is the clearest example of what the FMA is really about - part red meat for the base, part distraction from Republican betrayal of virtually everything they stood for in 1994 and part election year pandering.
"Well, that's an easy one. Being a polygamist is a definite choice."
Why is being a polygamist a "definite choice" but being a homosexual not? What if someone doesn't feel sexually fulfilled without having two partners?
The Cato position is "trust me", it won't happen, and you shouldn't be upset if it does.
Imagine the following bill passed through Congress and signed into law.
1) There is hereby established the First United States Church of Christ as the official national church of the nation and to which 1% of all revenue generated from the personal federal income tax will be appropriated to in perpetuity.
2) Per Article III Section 2, this legislation is an exception to the appellate jurisdiction of the Supreme Court and all Federal courts.
Someone sues, double quick. This OBVIOUSLY violates the the 1st Amendment, they'll claim.
And the Federal courts will find ways and means to rule the legislation creating the First United States Church of Christ (Paragraph 1 in the fictional law) as unconstitutional, regardless of what is in Paragraph 2.
Now, let's change things a tad.
1) Marriage shall be defined as only the union between one mand an one woman.
2) Per Article III Section 2, this legislation is an exception to the appellate jurisdiction of the Supreme Court and all Federal courts.
Someone will sue, double quick. This OBVIOUSLY violates the the 14th Amendment's Equal Protection clause (well, it isn't so obvious, but it is and will be to some liberal judges), they'll claim. And the Federal courts will find ways and means to rule this legislation (basically DOMA) as unconstitutional, regardless of what is in Paragraph 2.
DOMA's only going to last a few more years, Scalia's dissent in Lawrence was right, and court stripping's not going to save it.
To borrow a phrase, it is all over but the screaming.
The FMA does not cut short the national debate over this issue. The amendment process is a democratic process. The issue would be brought to the forefront during the process of Congress passing and the states ratifying the amendment. If it were to pass it would not mean that the debate was cut short, but simply that the American people had settled the debate (at least until a similarly large majority might repeal it).
The clear subtext in this line of argument is that the ongoing debate would continue to recognize more and more rights until the gay rights side essentially wins. In other words, we should oppose the FMA because otherwise the anti-SSM side might win before the pro-SSM side gets a chance to. That's a reasonable motivation, but not much of an argument.
For the record, I oppose SSM but am ambivalent about the proposed amendment because of argument #2.
On what basis do you make this statement? Exactly one state court (Massachussetts) has made gay marriage legal.
As Houston Lawyer said, you left out Vermont. CA's Supreme Court has at least flirted w/ pulling a Massachussetts, and other State Courts have done things equally as stupid and dishonest as the MA Court.
Personally, I'd be happy with a "DOMA Medium"
Guarantee that no court, anywhere, can force this on any Americans, and I'll be happy.
Nothing that fails to rein in the black robed thugs, however, counts as acceptable
There is not one church in this country who is forced to marry anyone they don't want to.
Yet. That's next.
Yeah, right, right after the Catholic Church is forced to conduct marriage ceremonies for divorced people. Don't hold your breath.
If gays marry, churches could suffer
By Douglas W. Kmiec, a professor of constitutional law at Pepperdine University School of Law
For technical legal reasons, it is difficult to challenge a religious group's non-profit status in federal court, but state court is more open. There, judicial decisions approving same-sex marriage or even state laws barring discrimination can be used to pronounce any opposing moral or religious doctrine to be "contrary to public policy." So declared, it would be short work for a state attorney general's opinion to deny the tax-exempt status of charities and most orthodox Jewish, Christian and Islamic religious bodies. If enough state lawyers do this, expect the IRS to chime in.
You ask: "But you are free to disregard your desires and marry someone of the same sex, someone who is 'old enough,' or someone not already married. What's unequal?"
Assuming you actually meant "opposite sex", note the important difference between the items on this list. If someone is "old enough", then anyone can marry that person, and the rules do not vary based on who you are. Similarly, if someone is unmarried, then anyone can marry that person, and the rules do not vary based on who you are.
Now, however, consider someone who is male. Not anyone can marry that person, and the rules vary based on who you are: if you are female you can marry this person, but if you are male you cannot. Similarly, consider someone who is female. Again, if you are male you can marry this person, but if you are female you cannot.
This was, of course, exactly the situation with anti-miscegenation laws. To use your terms, everyone was equally free to disregard their desire to marry a person of another race and instead marry a person of the same race. But the inequality occurred precisely because whether or not you could marry another person in particular depended on what race that person was, and what race you happened to be. And in that sense, making who you could marry dependent on your race and their race was race-based discrimination, just as making who you can marry dependent on your gender and their gendenr is gender-based discrimination.
Finally, I note again that the 14th Amendment does not limit its protections to race, and that the Supreme Court has already held that gender discrimination receives intermediate scrutiny. But even classes which are not protected by a higher level of scrutiny are still protected by the 14th Amendment--the difference is just what sort of scrutiny the state's justifications will receive.
None of which means that such discrimination--even race-based discrimination--is automatically unconstitutional. But the state does have to have a sufficient justification for the discrimination in question, and the point of demonstrating that the prohibition on gay marriage constitutes gender discrimination would be to force the state to do more to justify this policy.
There seems to be some confusion about what the FMA would do. Would it (a) explicitly state that there is no federal constitutional right to SSM, leaving it to the states to decide and/or (b) make it clear that if State A permits SSM but State B does not, State B will not be obliged to recognise SSMs from State A or (c) establish a federal constitutional prohibition on SSM, preventing the states from permitting it and precluding them from recognising pretended marriages?
These are quite different things. Arguments which support (a) and (b) (like not taking the risk, however large or small it may be, that five activist judges will read a right to SSM into the constitutional text as it stands) do not support (c). Arguments which undermine (c) (like not freezing public opinion on a contentious moral issue at a particular moment when it seems to be in flux, or arguments from federalism) do not undermine (a) and (b).
Professor Carpenter's paper quotes more than one version of the amendment. Despite reading them several times, I am unsure what is proposed, and there seems to be disagreement in the comments. What strikes me in all of the drafts is a mismatch between the first and second sentences which, in each case, creates an ambiguity. The second sentence talks about not requiring a state to recognise SSM, which suggests (b), and presumably by implication (a). But the first sentence proclaims what marriage is in the United States, which is non-SSM. That suggests (c), though it might have been a hamfisted way of stating (a). So the text pulls in different directions, and different people read it differently.
Whatever else one might say, it seems to me an objection to the amendment as it stands that it is ambiguous (whether or not that is deliberate). At the very least it ought to be made clear exactly what the amendment sets out to achieve. If it is just (a) and (b) one can and should lose the first sentence, and simply have a statement which says "This Constitution does not confer any right on persons of the same sex to marry. No State is required to recognise or give effect to any union between persons of the same sex as if it were a marriage." If the intention is (c) it should say "No State may permit persons of the same sex to marry, and no State may treat any union between persons of the same sex as if it were a marriage." Once they are clearly stated, the difference between these proposals is obvious.
Again, exactly why is it a matter of federal concern what the courts of an individual state are doing pursuant to the constitution and statutes of that state?
As Dale puts it nicely in his article:
"The states have not previously asked for, or received, the assistance of federal authorities to deal with their own state courts, state statutes, or state constitutions."
Except for the tens of millions channeled through the Bureau of Justice Assistance and a dozen other agencies that directly fund state courts.
Yeah, other than that of course.
At this point, it is clear that the ambiguity you note is quite deliberate. The whole point is to be able to sell the Amendment as doing whatever one person might want it to do, and as not doing whatever another person might not want it to do, even if sometimes those two things are actually identical.
Of course, since no one actually expects it to be proposed and ratified, and since this is actually just political theater, what would otherwise be intolerable ambiguities are comfortably left unresolved.
I'm not sure if you are a serious poster, but obviously asking for federal funding and asking for federal rules of decision are pretty different matters, and Dale clearly was referring to the latter and not the former when he spoke of "dealing with" state courts, statutes, and constitutions.
In any event, perhaps you will answer my question: why exactly is it a matter of federal concern what the courts of a particular state do with respect to gay marriage pursuant to state statutes and constitutions?
This is absolute unadulterated bullshit. Until anyone can show one case where a single church has ever been sued for refusing to perform a marriage on any discrimination grounds that would normally put any secular business in a heap of trouble (race, religion, national origin) just shut up about this.
An interracial couple can walk into a church tomorrow and even though anti-miscegnation laws have been constitutionally prohibited for almost forty years now the pastor can say, "I refuse to perform this marriage because I think the mixing of races is an abomination before the Lord". There is not one court in the entire country that will even consider a discrimination case against that pastor. There is absolutely no recourse for that couple in the courts.
So don't be ridiculous.
Is it possible to couch this “argument” in any more weasel words? Present state of relevant Constitutional doctrines make same sex marriage unlikely for foreseeable future. Forgive me if I don’t think these hollow assurances/blatherings from some law professor will keep a future supreme court from finding the penumumbras of emanations in the constitution mandating all states accept “gay marriage.”
Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.
Except that it isn’t, as John T pointed out with regard Utah’s statehood.
Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.
Going through the process of amending the constitution to preserve the unique status and importance of marriage to our nation and society is undemocratic? This “argument” is nonsensical.
Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.
This argument is the same as the first one, in that it assumes that future courts won’t do with gay marriage what Berger et al did with abortion. The only thing that will prevent gay marriage in the US is to write a prohibition to it in the constitution in unambiguous language. Arguing otherwise shows cluelessness or disingenuousness about jurisprudence in America in 2006.
Make no mistake, given current legal scholarship and supreme court interpretations, supporters of marriage have lost this debate. There is no legal justification not to call a contract between two men a marriage. You can be sure, in our lifetimes, this will come to pass. Unless we enact a constitutional amendment to remove marriage from interpretation by the courts, gays will be allowed to “get married” and enjoy the benefits that society has heretofore conferred on married couples. Absent this amendment, in twenty years, when we have a culture replete with gay marriage, polygamy, group marriages, and men marrying their grandsons to control inheritance, we will wonder how we got to this point. Or, more tragically, we won’t ask any questions at all, accepting those contracts as normal, and instead, wonder why society has gone to hell.
But marriage is not just another contract. Being married causes the individuals to receive other benefits, such as lower taxes.
I'll ask you too: exactly why is what state courts do with respect to gay marriage pursuant to state statutes and constitutions a matter of federal concern?
More to the point, a gay couple can walk into any number of churches today and have a gay marriage.
Our society has two similar but distinctly separate concepts identified by the word "marriage." One is civil, the other is religious. I'm not sure why so many people have trouble grasping this.
Or it’s just a recognition that while the public is pretty divided (depending on how the question is posed) on the so-called “right” to an abortion, there’s a pretty definitive consensus that marriage is between one woman and one man. Politics being the art of the possible, it’s perfectly reasonable for Congressional Republicans and Democrats to focus on an issue on which they are more likely to prevail.
Do you really think anyone in Congress believes that the FMA is likely to be proposed and ratified?
U.S. Constitution, Article IV, Section 1: "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state."
I have yet to see anyone articulate a good reason why this will not be applied to homosexual marriages by the courts. All I have ever heard is that "ministerial acts" like marriage laws have been exempted in the past for the vague reason that each state can set its own public morality policy. Shaky grounds, made even shakier by Lawrence v. Texas. I'm a lawyer: somebody make a good case for why a Massachusetts homosexual married couple cannot prevail to have my state (Texas) recognize their marriage under full faith and credit.
"Judges" abusing their position in order to force their views on other Americans is wrong. More than that, it is evil. Any time we can stop, and slap down, the black robed thugs who do that we should.
Roe v Wade wasn't wrong because it "froze the situation", it was wrong because it was unelectable and unaccountable "Justices" forcing their personal whims on the rest of us.
If you don't understand that, you don't understand anything.
My take:
1st Question: Is gay marriage a good idea?
I think generally not.
2nd Question: At what level of gov't should it be proscribed?
I think at the state level.
3rd Question: So, why the need for a Constitutional Amendment?
If states were holding referenda or even acting thru Legislatures to legalalize gay marriage, then I would probably accept this. But, since you have active forum shopping by gay marriage activists to have courts declare traditional marriage laws unconstitutional, I think an appropriate response is warranted.
So, I think, Yes, the only way to do this is thru Constitutional Amendment.
It is an unfortunate, but appropriate curb on judicial activistism.
Flynn
Because many Christianists prefer to fret about the speck in their neighbor's eye rather than the beam in their own.
Is the definition genetic?
By the eqpt. they carry?
And what do you do about folks who carry both kinds of eqpt?
So I might add reason #5 for conservatives to oppose this: not wanting their movement and party to continue to be the party of the gimmicky, unserious "let's propose a constitutional amendment that will never get enacted during an election year for cynical, partisan reasons" strategy. See also balanced budget amendment, term limits amendment, flag burning amendment, . . . .
Well, let's see if I can help you with that:
There is no State in this Country where the Legislative and Executive Branches have voted to recognize "marriages" by tow people of the same sex.
There is one State, MA, where a rogue majority of the State Supreme Court took it upon themselves to order the other two branches of the State Government to recognize and treat as valid such "marriages".
There's this idea, known as "Democracy", that says that it is The People who should rule. There's a modification of it, known as "Representative Democracy", which says that The People should chose "Representatives" to make the laws, and that the Representatives should have to go before The People, on a regular basis, in events called "Elections." There, The People declare whether or not they think the Representatives have done a good job, voting for the Representatives if they have, voting for someone else if the Representatives have not done a good job.
Allowing "Judges" to change the laws to suit the "Judges" personal desires (said "Judges" not being subject to campaigns where they go to The People, saying "this is what I'm going to do, these are the kinds of rules I'm going to impose, vote for me if you like these rules") is a direct assault upon the concepts of Democracy, and of Representative Democracy.
That is what every "Judge" or "Justice" who's ruled in favor of "same sex marriage" has done. That is what every ruling in favor of ssm, or ss domestic partnerships, will be, until such a time as The People chose to elect Representatives who explicitly chose to pass laws favoring such things.
Did I use small enough words that you understood?
Without marriage and reproduction we would have no society. So, society is completely justified in giving benefits to married couples. Nothing stops homosexuals from living together in exclusive relationships. The law only stops them from reaping benefits bestowed upon those that are capable of reproduction and ensuring the continuation of society.
Society has a compelling interest in assuring that institutions which support its continuation are not corrupted and I can think of no better place to codify these sacred institutions then in our founding document.
*Please note: Yes I am fully aware that not all married couples choose to reproduce - either through choice or biological inability. But, this is the vast minority of married couples. No matter what government policy you may be talking about - a very small number of people will receive its benefits but not necessarily be the prime target group.
I don't think it is unreasonable to be concerned that gay marriage may ultimately lead to greater state control over churches. In other countries, hate speech laws have been used against church ministers who have preached from the pulpit that homosexual activity is sinful. In this country, income tax exemptions have been pulled from church sponsored schools that had race based dating policies; church employers have been required to pay for their employees' abortions; medical students have been required to perform an abortion as part of their training; churches have been forbidden from requiring employees live according to the tenets of the church; and church ministers have been held liable for "malpractice" when giving "bad" marital advice. Given these precedents, why is it unreasonable to wonder whether a church might be, in some form or fashion, punished by government if it does not adopt the "correct" policy towards gay marriage? Advocates of SSM frequently assert that only bigotry can account for opposition to SSM. Wasn't bigotry the justification in removing the tax exemption from schools that prohibited cross-race dating? On that basis alone, why shouldn't it be expected that a church that refuses to perform gay marriages is at great risk of losing its tax exemption?
What you are calling a "vague reason" is actually a long-standing and well-recognized part of the Supreme Court's doctrine with respect to the Full Faith and Credit clause. As the Court recently explained in Baker v. General Motors COrp., 522 U.S. 222 (1998):
"Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments. In numerous cases this Court has held that credit must be given to the judgment of another state although the forum would not be required to entertain the suit on which the judgment was founded. The Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate." (citations and quotations omitted).
See also Nevada v. Hall, 440 US 410 (1979), where the Court reasoned:
"It has often been recognized by this Court that there are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. . . . [W]e think the conclusion is unavoidable that the full faith and credit clause does not require one state to su