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Amendments That Take Away Rights

The Supreme Court, like European courts, has long recognized that corporations have constitutional rights, ever since its 6-to-1 decision in Dartmouth College v. Woodward (1819). But left-wing ideologues have falsely claimed that corporate constitutional rights are a recent invention by right-wing Supreme Court justices, in response to the Supreme Court's 2010 ruling in Citizens United v. Federal Election Commission, which ruled that corporations and unions have the right to criticize politicians even when doing so involves spending money (that case involved a non-profit ideological corporation that wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts. In response, the government argued that it could not only restrict such paid expression, but also restrict even books critical of politicians during an election campaign).

Although the Citizens United decision did not say that corporations are "people," some of its critics have claimed that it did, and they have drafted something called the "People's Rights Amendment," which would permit the government not only to censor corporate speech, but also to seize and nationalize corporate property without compensation, under the theory that corporations are not people and thus have no constitutional rights at all. (The People's Rights Amendment takes away the rights of non-profit corporations, which include most churches, colleges, charities, political parties, and campaign committees. Most newspapers, magazines, and broadcasters today are corporations, unlike back in 1789, when the press was not incorporated.)

Amazingly, three state legislatures -- Vermont, Hawaii, and New Mexico -- have passed resolutions in support of the People's Rights Amendment, which is worthy of a Communist People's Republic. And 28 members of the House of Representatives (all but one of them liberals) are sponsoring the People's Rights Amendment in Congress. (Citizens United was not even the first Supreme Court decision to rule in favor of a corporation's challenge to a speech restriction. Earlier cases like First National Bank of Boston v. Bellotti had done so, without controversy.)

Yesterday, North Carolina voters passed a state constitutional amendment banning gay marriage. (Maryland will likely vote on a referendum to repeal gay marriage in that state in November.) For some reason, this amendment is described by many of its supporters as a "marriage protection" amendment. I am not sure why. Banning gay people from getting married does not do anything to "protect" my marriage. (Walter Olson discusses one very anti-family position taken by one of the groups backing North Carolina's Amendment One.)

Conceptually, one would think that if monogamy is good for heterosexuals, it is good for gay people as well. Legalizing gay marriage does not appear to have done anything to increase the incidence of divorce (or even homosexuality for that matter) in those countries that have recognized gay marriage. Conversely, the absence of legal recognition for gay marriage in a state does not stop bossy gay activists, aided and abetted by liberal judges, from coercively using ordinances banning sexual-orientation "discrimination" against religious businesses that do not want to be involved in gay commitment ceremonies (like the wedding photographer fined for not photographing a gay commitment ceremony in New Mexico, which had no gay marriage or civil-union law at the time).

Banning not only gay marriages but also recognition of all gay non-marital unions might make it marginally harder for a plaintiff to bring such nuisance suits, but it would also open the door to unforeseen consequences, such as when Virginia's anti-gay-marriage, anti-civil-union amendment was  interpreted by a trial judge to bar cutting off alimony to a cohabiting ex-wife merely because the ex-wife was a lesbian who chose to cohabit with a woman rather than a man, a ruling that was overturned by the appeals court on other grounds.

Overall, the cost-benefit analysis seems to weigh in favor of recognizing gay marriage. Moreover, federally recognizing gay marriages -- that is, repealing the Defense of Marriage Act -- would bring in at least $1 billion in additional tax revenue, partly because couples comprised of two wage earners are taxed on their social security benefits at lower income levels, and pay more in taxes over their lifetimes, and receive fewer means-tested benefits, if they are married than if they are unmarried, due to marriage penalties contained in federal law. (While a few spouses benefit greatly from government recognition of their marriage -- like those who are able to immigrate through a marriage-based immigration visa -- for a large fraction of the population, civil marriage is economically much like a vanity license plate, something that costs money and does not make sense for purely financial reasons.)

If people want to protect marriage and the family, they should focus on eliminating marriage penalties and disincentives to marry contained in federal law, rather than wasting time trying to ban gay marriages. As Rep. Thomas Petri (R-Wis.) has noted, "The decline in marriage and the rise in the number of children born to unmarried mothers are concentrated among lower-income families. One reason is that lower-income couples will often lose money if they get married. Many federal benefits such as food stamps and the earned income tax credit phase out as income rises. Under federal law, if two individuals earning the minimum wage choose to marry, combining their incomes results in the loss of some $7,000 in federal benefits. The result: Fewer marriages, more births outside marriage and reduced prospects for rising into the middle class."