Guest Commentary
The Federal Marriage Amendment Folly
By Andrew W. Pollock III
www.MichNews.com
Apr 10, 2006

The text of the proposed Federal Marriage Amendment is likely to be the following, or something very similar:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

There appear to me to be two problems with this approach to keeping the same-sex marriage controversy out of the courts:

1) The first is that it would probably be very difficult to get this amendment through both houses of Congress (since 2/3rds of the votes of each house are required) and then ratified by conventions in 3/4th of the states. These types of proposed amendments (pertaining to flag burning, school prayer, etc.) have been repeatedly tried in the past only to fail dismally, often in the Senate, and there is little reason to suppose that it would be any different now.

2) Even if this amendment were to be ratified, what would prevent activist judges from ignoring the plain meaning of the amendment? For example, a judge might rule that although a person may be physically male, it's possible that he could be psychologically female at the time of the marriage and therefore a women, and thus the amendment could be interpreted as providing constitutional protection for same-sex unions, so long as one of the partners claimed at the time of marriage to be psychologically a member of the opposite gender.

Accordingly, with regards to the same-sex marriage controversy, and other controversies arising under the text of the Constitution, the solution is to restrict the jurisdictions of federal district and appellate courts (and the appellate jurisdiction of SCOTUS), so as to prevent these courts from hearing cases and making rulings pertaining to the controversy; this could be accomplished by Congress, with the cooperation of the president, by means of a statute.

"The All Writs Act" could also be amended to preclude federal courts from issuing writs to: 1) prevent the enforcement of federal statutes pertaining to marriage, and 2) prevent the enforcement of state and local laws pertaining to marriage unless the state and local laws are in conflict with a federal statute.

http://www.popularsovereignty.org