“The assumption that there must be a single national definition of marriage — traditional or open-ended — is mistaken and pernicious. It is mistaken because the existing constitutional framework has long accommodated differing marriage laws. This is an area where the slogan “states rights” not only works relatively well, but also has traditionally been left to do its job. We are familiar with the problems of integrating different marriage laws because for the last 200 years the issue has been left, fairly successfully, to the states. The assumption is pernicious because the winner-takes-all attitude that it engenders now has social conservatives pushing us down the constitutional-amendment path. For those who see the matter in terms of gay rights, this would be a tragedy. But it would also be a tragedy for those who genuinely favor local autonomy, or even those of us who genuinely favor keeping the constitutional text uncluttered by unnecessary amendments.
If today’s proponents of a marriage amendment are motivated by the fear of some full faith and credit chain-reaction set off in other states by Massachusetts, they needn’t be. If they are motivated by the desire to assert political control over what happens inside Massachusetts, they shouldn’t be. In our 200-year constitutional history, there has never yet been a federal constitutional amendment designed specifically to reverse a state’s interpretation of its own laws. Goodridge, whether decided rightly or wrongly, was decided according to Massachusetts’ highest court’s view of Massachusetts law. People in other states have no legitimate interest in forcing Massachusetts to reverse itself — Massachusetts will do that itself, if and when it wants to — and those who want to try should certainly not cite the Full Faith and Credit clause in rationalizing their attempts.
Unlike most other hotly contested social issues, the current constitutional marriage debate actually has a perfectly good technical solution. We should just keep doing what we’ve been doing for the last 200 years.” – professor Lea Brilmayer, Wall Street Journal, today.
The Dish 