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Jewish World Review July 16, 2004/ 27 Tamuz 5764

Kathleen Parker

Kathleen Parker
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Fact and farce in the romance of states' rights | WASHINGTON — To fans of theater, this week's Senate debate about same-sex marriage was a genuine farce.

Yet with straight faces that would make John Kerry envious, Democrats repeatedly invoked "states' rights" — traditionally a Republican imperative — as the lynchpin of their opposition to the Federal Marriage Amendment (FMA), which would have defined marriage as between one man and one woman.

Sen. Richard J. Durbin, D-Ill., even dropped the name Strom Thurmond into an argument about procedural fidelity. Granted, Durbin's remark was in connection with legislative protocol, but no one south of the Mason-Dixon could miss the tragicomic juxtaposition of Thurmond and states' rights in an argument that claims to protect against discrimination.

Thurmond's infamous states' rights position as a presidential "Dixiecrat" (States' Rights Democratic Party) candidate in 1948 was a Shakespearean mask, skillfully donned, to preserve state-sanctioned discrimination against blacks while feigning allegiance to the higher ground of state autonomy. Today's Democrats' sudden affection for states' rights purportedly proffered to protect against discrimination is likewise a Thurmond-esque beard that conceals the real issue.

Simply stated, states' rights in this case really means full power to state courts, which are being allowed to create (rather than interpret) laws in defiance of the democratic process and in contempt of the clear preference of a majority of Americans, including both presidential candidates and most elected officials.

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Opponents of the FMA also argued that there is no urgency for such drastic action and charged that the amendment was strictly a political move. The timing was of course political in part, an attempt to force Kerry and John Edwards to declare themselves. But as was clear to anyone who listened to the debate, there was a substantive element as well.

Since when are substance and politics assumed to be mutually exclusive?

Moreover, there is legitimate cause for concern as courts move apace according to a national strategy to make same-sex marriage the law of the land. A recent lawsuit filed in Massachusetts gives evidence of that strategy and of the fallacy of the states' rights argument.

The suit seeks an injunction against enforcement of a 1913 state law prohibiting marriages in Massachusetts that would be illegal in couples' home states. Massachusetts Gov. Mitt Romney, who opposes same-sex marriage, invoked that law as his final legal straw to stop out-of-state couples from coming to Massachusetts as a marital safe haven, a kind of legal loophole around the clearly expressed will of the people in their own states.

The suit was filed by eight out-of-state couples, who claim the law is discriminatory (because it hasn't been enforced in recent years and was dusted off only to use against gays and lesbians) and violates both state law and the U.S. Constitution. What the suit makes clear is that there is in place a national strategy to ratify same-sex marriage, state-by-state, through court challenges rather than through legislation by officials accountable to the people.

So there you have it: The Senate killed the FMA for this session in a 48-50 vote. Republicans say they'll keep fighting for the amendment, but state courts in the meantime will continue to create laws most Americans don't want.

Whatever ultimately happens, one thing needs to be clear: The FMA stands as the only certain way Americans can be assured a voice in determining how the American family — and ultimately American culture — are defined. By sending the FMA to the states for ratification or rejection, it is the people of the American states, not the courts of those states, who will be given a voice.

That's the bottom line. All else is smoke and mirrors.

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