Eliminate Federal Court Jurisdiction

http://www.lewrockwell.com/paul/paul160.html
Eliminate Federal Court Jurisdiction
by Rep. Ron Paul, MD

The President's recent announcement that he supports a constitutional
amendment defining marriage has intensified the gay marriage debate. It
seems sad that we need government to define and regulate our most basic
institutions.
Marriage is first and foremost a religious matter, not a government matter.
Government is not moral and cannot make us moral. Law should reflect moral
standards, of course, but morality comes from religion, from philosophy,
from societal standards, from families, and from responsible individuals. We
make a mistake when we look to government for moral leadership.
Marriage and divorce laws have always been crafted by states. In an ideal
world, state governments enforce marriage contracts and settle divorces, but
otherwise stay out of marriage. The federal government, granted only
limited, enumerated powers in the Constitution, has no role whatsoever.
However, many Americans understandably fear that if gay marriage is
legalized in one state, all other states will be forced to accept such
marriages. They argue that the Full Faith and Credit Clause of the
Constitution essentially federalizes the issue; hence a constitutional
amendment is necessary.
But the Defense of Marriage Act, passed in 1996, explicitly authorizes
states to refuse to recognize gay marriages performed in other states.
Furthermore, the Supreme Court repeatedly has interpreted the Full Faith and
Credit clause to allow Congress to limit the effect of state laws on other
states. In fact, federal courts almost universally apply the clause only to
state court judgments, not statutes. So a constitutional amendment is not
necessary to address the issue of gay marriage, and will only drive yet
another nail into the coffin of federalism. If we turn regulation of even
domestic family relations over to the federal government, presumably
anything can be federalized.
The choices are not limited to either banning gay marriage at the federal
level, or giving up and accepting it as inevitable. A far better approach,
rarely discussed, is for Congress to exercise its existing constitutional
power to limit the jurisdiction of federal courts. Congress could
statutorily remove whole issues like gay marriage from the federal
judiciary, striking a blow against judicial tyranny and restoring some
degree of states' rights. We seem to have forgotten that the Supreme Court
is supreme only over lower federal courts; it is not supreme over the other
branches of government. The judiciary is co-equal under our federal system,
but too often it serves as an unelected, unaccountable legislature.
It is great comedy to hear the secular, pro-gay left, so hostile to states'
rights in virtually every instance, suddenly discover the tyranny of
centralized government. The newly minted protectors of local rule find
themselves demanding: "Why should Washington dictate marriage standards for
Massachusetts and California? Let the people of those states decide for
themselves." This is precisely the argument conservatives and libertarians
have been making for decades! Why should Washington dictate education,
abortion, environment, and labor rules to the states? The American people
hold widely diverse views on virtually all political matters, and the
Founders wanted the various state governments to most accurately reflect
those views. This is the significance of the 10th Amendment, which the left
in particular has abused for decades.
Social problems cannot be solved by constitutional amendments or government
edicts. Nationalizing marriage laws will only grant more power over our
lives to the federal government, even if for supposedly conservative ends.
Throughout the 20th century, the relentless federalization of state law
served the interests of the cultural left, and we should not kid ourselves
that the same practice now can save freedom and morality. True conservatives
and libertarians should understand that the solution to our moral and
cultural decline does not lie in a strong centralized government.

--
Atheism teaches that there is no God, hence no God-given rights. That
ideology coupled with a system that believed in the superiority of the state
at the expense of the individual was murderously synergistic.

Dana wrote:
> Marriage is first and foremost a religious matter, not a government
> matter.

I disagree. Marriage is a secular matter. Most people are unaware of what
marriage is all about, and cannot distinguish the legitimate reasons for
marriage, let alone objections to homosexual marriage.

As originally defined in law, marriage was not a license to cohabit,
engage in sexual relations, nor grant socialist benefits to the parties to
the marriage. It was a mechanism whereby two individuals' property rights
were merged for the benefit of the progeny - the legitimate child. In one
sense, the merging of property rights in the child is that which no man can
put asunder - not the marriage itself.

A legitimate child had a claim upon the mother's AND the father's property.
An illegitimate child could only claim the mother's property. The father
had no duty of support nor would his property pass to the illegitimate
child. A man who was married, yet sired bastards, did not dilute his
private property passed to his legitimate heirs nor injure the rights of
his lawful wife.

When one or both parties to a marriage had no property rights, a situation
existed that required special treatment. That's the original reason for the
civil marriage license. It was permission to allow a person who was
property (i.e., slave) to marry one with property rights. In Black's law
dictionary, 'marriage license' still has a footnote to miscegenation
(marriage between races). The license facilitated the transfer of property
rights that had no legitimacy under the common law.

Another telltale indicator is curtesy and dower, the right of a surviving
spouse to the property of the marriage. In the common law, the rights of
curtesy and dower were predicated upon there being children issued from the
marriage. Without children, the surviving spouse had no superior claim upon
the deceased spouse's property. The blood relatives had a superior claim.

Until progeny emit from a homosexual union, it's clear that there's no
legitimate reason for same sex marriage. Without progeny there is no union
of property rights for posterity. But since socialism offers benefits based
upon marriage status, it's clear that "other unions" will seek those same
benefits, no matter what.

Abolish socialism, and the cries for homosexual marriage would cease in
favor of a simple contract for sharing property.