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October 4, 2013


Today I attended a Democratic Women’s Caucus breakfast here in Bloomington, Indiana, where my daughter spoke to some 50 attendees as a furloughed federal employee. It was disappointing to know that my daughter is classified as a “non-essential” federal worker (unlike those in the House). I had hoped that she would be of service to her country, but stuff happens. She spoke as a furloughed federal worker on the shutdown of the federal government.


One of the other speakers talked of stopping a proposed constitutional amendment to the Indiana state constitution which would define marriage as consisting only as between a man and a woman. If the proposed amendment worms its way into the state constitution, then we shall have established by organic law (and thus untouchable by future statute, executive order etc.) more than just describing gender qualifications for entering into a marital contract; we will have established the precedent that (by organic law) the state may decide by force of law that its citizens MUST be heterosexual in order to enter into such a contract.


In economics, we define “externalities” as unlooked-for events following adoption of an economic policy; in the law we call them “the law of unintended consequences.” Thus if you adopt a trade policy that sends jobs to China and results in decreased employment here, that is not an externality because it could have reasonably been foreseen, but if schools close because of the loss of the tax-paying base (say a steel mill that closed as a result of such policy), and the schools in the area consequently close for lack of funding, that may qualify as an “externality.”


Applying the same reasoning to the gender equality issue, if we authorize the state via constitutional amendment to limit marriage to heterosexuals, we will not only have excluded homosexuals from entering into such marital contracts, we will have established the precedent that states may limit formation of contracts on the basis of sexual orientation. One of the “unintended consequences” of such determination is that we may have authorized a future determination (what with evolving mores) that only homosexual individuals may marry and that heterosexuals may not intermarry (an increasing possibility in view of the overriding issue of our day – the overwhelming of our resource base due to overpopulation – whose effects have been described by Malthus and others since).


Other possible “unintended consequences” of such policy enshrinement in a constitution could include prohibitions of contracts based on color, social class, religion or lack thereof, political orientation etc. etc., all of which could spring from judicial interpretation and implementation of the underlying power of states to limit participation in contracts, whether marital or commercial or otherwise.


Ancillary problems resulting from the constitutional adoption of allowing states to determine personal qualifications in order to contract could include the following scenario: Let’s say that two homosexuals go to an European country such as France and are married and then return to Indiana and file joint tax returns and demand to hold real estate as tenants by the entireties (thus avoiding a probate problem in case of death of a co-tenant). Can they be “married” for federal purposes but simultaneously denied the “husband and wife” protections afforded by the state since they are “constitutionally” not married under state law? What about a joint filing under federal bankruptcy law by these two? Bankruptcy law is exclusively federal in nature, yet the bankruptcy court must deal with titles to state property, exclusions, etc. How can a joint filing for bankruptcy of a married couple by federal law be meshed with state law denying that such a couple is married?


States such as Indiana cannot make treaties with France or any other country; only the federal government can make treaties with foreign countries. How does that work out when the federal government has exclusive jurisdiction to make treaties with foreign countries but no jurisdiction in marriage matters while the states have exclusive jurisdiction in marriage matters and no jurisdiction to enter into treaties with foreign countries? See any problems? I see chaos.


These are just a few of the myriad difficulties I foresee when considering the effect of such a proposed amendment. There is much more involved than the hatred fed by the underlying assumption of homosexuals bad – heterosexuals good burned into the brains of those who would ban such contracts based upon the personal qualifications or disqualifications of those who seek the benefits and burdens of marital contracts. There are enormous implications underlying such a proposed amendment that have nothing to do with sexual practices. The proposal is a recipe for political and economic disaster and an exercise in coercion. The proposed constitutional amendment’s language (in my view) is itself unconstitutional on a number of different grounds, such as invasion of privacy, freedom to contract etc.


The proposed constitutional amendment is a bad idea since it seeks out the chaos of divisiveness, unintended consequences and even economic externalities by brute force.  GERALD  E


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One Comment
  1. billy1926 permalink

    “Après moi, le déluge” Given enough time, these dudes’ successors will have all Hoosiers branded on the forehead with an assortment of colored letters, each of which denotes their degree of usefulness/probity to the ruling junta. Of course, those deemed totally useless must be eliminated,

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