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Barnett's Explanation of Windsor

 

Since replies to the Tenth Amendment Center post by Randy Barnett are moderated, I'll include mine here.


I

n explaining the supreme court's opinion in Windsor, Barnett says, "By adopting this federalism approach to identifying protected liberty, however, states remain free to continue deciding the marriage question. Of course, this assumes that what the Court today says about the irrationality of DOMA (Defense of Marriage Act) at the federal level is not used to undermine the constitutionality of refusals to recognize same-sex marriage by states — as Justice Scalia predicts will flow from the majority's reasoning." In my reply, I question that assumption:

Given the supreme court says it's unconstitutional at the federal level to define marriage in a manner that violates equal protection vis-à-vis a state's looser definition, how long before the court invokes the supremacy, full faith and credit, and perhaps privileges and immunities clauses to say it's unconstitutional at the state level to define marriage in a likewise manner? What difference, at that point, does any legal definition of marriage make when, under this lowest common denominator doctrine, the court may adjudge it "improperly motivated by animus" in light of an anything-goes one?

Had Congress, in DOMA or another law, applied the appellate jurisdiction clause so that such cases would never reach the supreme court and that the court would never be at liberty to inquire into Congress's motives, any damaging affects could be confined to no more than a few judicial circuits.

As it stands, the 39 traditional marriage states's legislatures must act themselves if they wish to preserve and protect their laws; viz., 34+ make application to Congress to call a convention for the specific and exclusive purpose of proposing a defense of marriage amendment, then 38+ ratify the proposed amendment. The amendment may be as simple as:

The power to give in one State full faith and credit to the public acts, records, and judicial proceedings of another with respect to marriages and other domestic relations contrary therein to the laws of such State, is reserved to the States respectively.

Or it may go further to include the federal government's treatment of such relations.

Whichever they decide to settle on, the time for those states to develop their response is now.



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