Federalist Society Debate

I got to do a Federalist Society debate on Amendment One (I'm against).

Here is Amendment One, the "protect marriage amendment."

Here is the ad for the debate.

My notes (only notes, didn't retype it, but this was my opening statement).

Any political system must balance the rights of individuals and the power of the majority.  The US is not a democracy, if by democracy you mean “majority rule.”  Many parts of the US system are explicitly anti-majoritarian.  The Bill of Rights protects individuals against majority tyranny.  Not against “the government,” but rather against majorities.  James Madison in particular was very concerned about majority tyranny.

The power of the majority is most dangerous when the minority is small and isolated.  The greatest constitutional protections focus on conscience and property.  Suppose I want to build a house on my property.  But my five neighbors like it with trees.  They vote to take my property and make it a permanent park.  We vote, and I lose, five to one.

The ability to sign contracts is one of the key provisions protected by the Constitution.  And because the ability to sign and enforce contracts was restricted by state governments intent on using racial prejudice to apply the laws in discriminatory fashion, the 14^th Amendment was passed after the Civil War.

That 14^th Amendment is perhaps the single most important change in the US Constitution regarding the ability of states to allow majorities to tyrannize over minorities. 

Section I has three majestic clauses, separated by semi-colons: 

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

No State shall make or enforce any law which

(a) shall abridge the privileges or immunities of citizens of the United States; nor

(b) shall any State deprive any person of life, liberty, or property, without due process of law; nor

(c) deny to any person within its jurisdiction the equal protection of the laws.

 Now, this is the U.S. Constitution, and we are amending the NC Constitution.  So what am I even talking about?

Consider what specific protections this amendment is supposed to provide.   Consider with me what it takes to get married.  Two checklists.  Marriage is a religious ceremony, and a civil contract.  But atheists can and do get married, so the religious part is voluntary.  The civil contract portion is NOT voluntary.

I was married in my wife’s church, and to do that had to go through a checklist.  Acknowledge Jesus Christ as my Lord and savior, show proof of Christian baptism, take classes in Christian marriage, and promise to raise children in the church.  And marriage is defined as between a man and a woman.  Long checklist here from a Baptist church near me on Leesville Road.

If our state legalized LEGALIZED same sex marriage, what would change?  Nothing.  No part of that list could be affected, under the first amendment.  In fact, if the government tried to force churches to perform the sacrament, rite, ceremony, whatever you want to call it, Katy Parker and the ACLU would likely take up the case.  Because that would be a gross violation of the first amendment.

So, even if same sex marriage contracts were legalized, the religious implications are non-existent, because already protected.  If you think constitutional amendments don’t protect, then why are we passing one?  If they do protect, already protected!

There is a second checklist.  In order to qualify for the civil aspect of marriage, the contract part, you have to meet certain thresholds.  For the most part, these are analogous to the common law requirements for a valid contract.  Law students learn in their first contracts class what it takes for a contract to be valid.  Identification, background, since marriage is exclusive no other marriage contract is operative, birth certificate (to protect your contract partner from fraud, you have to show you really are who you say you are).

And then it says NAMES, “Bride” and “Groom.”

Meaning a woman, and a man.

Now, why?  This is a contract, between two consenting adults, each of whom otherwise meet the standards for a valid contract.  But we are saying that some of these partner contracts will be enforced by the state, and others will not.  The denial of the right to equal protection has no justification, cannot be justified in religious terms.  For one thing, that would violate the first amendment.  Second, I’ve already shown that there is no threat to religious liberty because no church could be obliged to honor these contracts of civil union, these contracts of domestic partnership, whatever you want to call them.  The only religious question is whether a religious majority can force others, who do not share their beliefs, to accept a religious definition of marriage.

In short, marriage has two meanings in our culture.  One is a religious meaning, a meaning created in partnership between a particular church and the people who freely and voluntarily choose that church.  That aspect of marriage is a citadel, a fortress that no law can touch.  That aspect of marriage is already protected by the First Amendment.

The other aspect of marriage is a secular contract, an agreement between two adults who voluntarily enter into a relationship that certifies their commitments to each other.  That secular marriage contract comes with a set of obligations and understandings that would require thousands of dollars to write up separately.  A marriage license issued by the state has conventional meanings in terms of inheritance, insurance, power of attorney, care of children, control of assets, and a hundred other things.  It is difficult, expensive, and pointless to require a same sex couple to accomplish through a huge packet of separate contracts what can be accomplished simply by allowing them to secure a marriage license.

Supporters of the amendment freely admit that the contractual arrangements implied by a secular marriage contract can be obtained by same sex couples.  But they have to spend thousands of dollars to write out the contracts, each of which would then be subject to separate litigation.  This is a violation of both "rights and privileges” clause and the “equal protection” clause of the 14^th Amendment.

One group, woman-man couples, are allowed to use an easy, inexpensive, and established low cost procedure.  Another group, same-sex couples, is denied that contract, and for reasons that have nothing to do with the capacity to enter into that contract.  Every point on the checklist (age of consent, no duress, proper identification) can be met by same sex couples. 

This is a contract, a secular arrangement.  If the state offers it to any couples, it must offer it to all couples.

To do otherwise is to pick and choose among contracts.  It is to allow the majority to decide what contracts an individual can sign.  These kinds of restrictions, where majorities take from individuals, are increasing at every turn around us.  The Kelo decision said that a majority can take property.  Environmental laws say that majorities can deny property owners the right to use that property.  Why are we adding another validating example to the doctrine that majorities can restrict access to contracts for individuals? 

We are giving away a principle, for a gain that counts for little.  The law that NC has is sufficient to protect marriage.  This amendment will give opponents of free and voluntary contracts another argument to use in restricting the rights of individuals in other areas. 

Conservatives have always been on the side of the individual, and against the expansion of collectivist ambitions.  This amendment is wrong.