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Politics : Politics for Pros- moderated

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To: Dayuhan who wrote (28731)	2/10/2004 5:19:15 AM
From: LindyBill	Read Replies (3) of 793689

Prof. Bainbridge on the FMA: My colleague Steve Bainbridge writes: [Eugene Volokh, 2/9/2004 10:05:07 PM] . . . I would like to see Bush turn the debate fully to the "who decides" question. Instead of talking about the sanctity of marriage (which heterosexuals like Britney Spears are doing a pretty good job of destroying without help), Bush should focus the debate on judicial activism. How to do this? Revise the FMA so as to leave the definition of marriage to the state legislatures, while not requiring other states (or the federal government) to accept another state's definition. Then let the chips fall where they may. The idea is to allow representative democracy to work out the answer on a state by state basis without courts using either equal protection or the Full Faith and Credit clause to impose a national regime before the national population (not just metropolitan elites) have reached consensus. A very narrowly tailored FMA would not require one jurisdiction to honor the definition of marriage used by another state. If Massachusetts decides to validate gay marriages and a gay couple got married in Massachusetts and then move to Alabama, Alabama would not have to treat them as being married. Arguably, Alabama already would not have to do so, because the FF&C clause has a public policy exception. It is sharply contested, however, whether the public policy exception would be applied to allow states to decline to recognize gay marriages lawful under the law of the state where the marriage occured. This has become a particularly debatable proposition after the decision last term in Lawrence. Hence, the suggestion to offer a very narrowly tailored FMA to allow each jurisdiction to decide for itself what will constitute a legal marriage under its laws, without having to defer to the definition used by the locus of the marriage ceremony. . . . I agree entirely.

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