A Federal Marriage Amendment--Let the Debate Begin
Emboldened by the Supreme Court's decision in Lawrence v. Texas, 539 U.S. ___, 123 S.Ct. 2472 (2003) that established a constitutional "liberty" to engage in homosexual conduct, pro-gay activists in Massachusetts, California and New Mexico have acted to change laws in order to give recognition to same-sex marriages. Although the Lawrence decision did not specifically legitimize same-sex marriages, some contend that implicitly it did. Justice Antonin Scalia, in his dissent, predicted that Lawrence signaled that barriers to same-sex marriages would soon start coming down.
In November 2003, by a 4-3 vote ruling, the Massachusetts Supreme Court struck down the Massachusetts law that prohibited same-sex marriages. Goodridge v. Department of Public Health, (Mass., No. 08860, Nov. 18, 2003) U.S. Law Week, Vol. 72, pp. 1306-1307. The majority applied the rational basis test to the law, and stated that there was no rational basis for prohibiting same-sex marriages, and stated that denial of marriage licenses to same-sex couples violated the Equal Protection Clause of the Fourteenth Amendment.1 Thereafter, in February 2004, the county clerk's office in San Francisco issued 2,800 marriage licenses to same-sex couples, defying California laws that prohibited this. (The Washington Times, February 20, 2004, and The Washington Post, February 21, 2004.)2 Also in February 2004, county clerks in New Mexico issued at least 66 marriage licenses to same-sex couples, defying New Mexico laws that prohibited it. (The Washington Post, February 22, 2004.) Similar legal battles are unfolding in New Jersey and Oregon. (Bruce Fein, "Contemporary Consensus Amendment," The Washington Times, March 16, 2004.) The legal battles to resolve these conflicts will continue for some time.
With this backdrop, in early 2004, the Bush administration reiterated its plan to spend $300 million a year to promote healthy marriages.3 In the meantime, marriage-related issues are also being addressed through the Defense of Marriage Act (1996) and the proposed Federal Marriage Amendment (FMA).
1. The Defense of Marriage Act.
The Defense of Marriage Act (DOMA) was passed by Congress and signed into law seven years prior to the Supreme Court's ruling in Lawrence v. Texas.4 The DOMA says that the states do not have to recognize same-sex marriages made in another state. Of course, this law won't help Massachusetts escape the activism and edicts of its own Supreme Court.5 And it is not known yet whether DOMA or the Full Faith and Credit Clause of the Constitution (Article IV) will prevail when the two inevitably clash. The Full Faith and Credit Clause requires states to recognize the validity of official acts of sister states unless those laws are repulsive to those of the other state. But there is plenty of uncertainty in this exception, making it impossible to predict which principle would trump the other.
2. The Federal Marriage Amendment.
In May of 2003, Colorado Republican Marilyn Musgrave introduced in the House of Representatives a proposed Federal Marriage Amendment.6 Subsequently, an identical amendment was proposed in the Senate. On February 24, 2004, President Bush announced his support for a FMA.
It is difficult to predict whether Congress and the States will be able to pass a federal marriage amendment restricting marriage to heterosexual couples. For while in recent polls a majority of Americans are opposed to recognizing same-sex marriages,8 not all of these people favor a constitutional amendment to mandate it. Conservatives are divided on this issue. The very foundation of conservatism is that state rights should be recognized and that federal laws must not encroach on the domain of the states. Thus, a federal amendment defining marriage would infringe on the historical power of states to define and regulate marriage.9 Of course the problem with this strict conservative approach is that it fails to acknowledge that the Supreme Court has long ago (beginning in 1965) pre-empted the regulation of the rights and relationships incident to marriage, through its famous cases of Griswold v. Connecticut (1965) (the right of married couples to use contraceptives), Eisenstadt v. Baird (1968) (the right of adults to use contraceptives), Roe v. Wade (1973) (the right to an abortion), and Troxel v. Granville (2000) (the right of parents to raise their children). Thus, the states have already lost whatever powers they once had to regulate these incidents of marriage. Therefore, since the states have no authority to regulate these incidents of marriage, the states' rights argument that a constitutional amendment should not define marriage is hollow rhetoric. The fact is that because the Supreme Court has legislated so extensively in controlling the incidents of marriage, it is folly to consider this to any longer be a matter subject to state control. The genie is out of the bottle and will not be put back in. Purist conservatives must acknowledge this, and move on. The strength and reach of federal constitutional rights has now come to be so great that a federal solution through constitu-tional amendment is a preferred way to deal with the same-sex marriage issue; and it is a good way to prevent activist judges from attempting to establish same-sex marriage in society through radical interpretations of existing constitutional law. A constitutional amendment can reign in these social reformers.
The most fundamental of all societal relationships the male-female union. It is of unsurpassed importance. The rights incident to it are paramount and not to be made subject to erosion or dilution or obliteration by the actions of different states. Just as the rights to bear and beget children and the right to rear children are protected by the Constitution, so too, the scope and parameters of the right to marry or not may also be governed by the federal Constitution. Conservatives who resist a federal marriage amendment effectively acquiesce in federal control of marriage. An amendment prohibiting same-sex marriage would not return marriage to state control, but it would correct and/or prevent activist courts from recognizing same-sex marriages.
Why is it better for America to allow the Supreme Court to write our national laws with respect to all these incidents of marriage, than to have these matters resolved through the democratic processes in amending the Constitution? There is nothing wrong with amending the Constitution to resolve a matter of such supreme importance. And, in doing so, if We the People should modify any of the court-crafted rules, then that's just fine. Amending the Constitution is difficult, but it is clearly a proper way to correct the courts who go astray.
James Madison and the founders of the Constitution did not initially seek to establish the federal rights contained in the Bill of Rights. But their subsequent establishment in the Constitution by amendment in 1791 has not been a mistake; to the contrary, the inclusion of these rights in the first Ten Amendments to the Constitution has come to be revered and cherished by virtually all Americans. Several Democratic members of Congress have decried the FMA as being "based in intolerance and divisiveness,"10 and as an attempt to "write bias back into the Constitution."11 Rosie O'Donnell, criticized President Bush for supporting an FMA, calling the President's words of support to be "vile" and "hateful."12 Although some people may be of this opinion, I find this view to be totally in error. It erroneously imputes vile and hateful motives where none exists; it is a defensive smear tactic, to attempt to intimidate and scare good people from speaking up for virtue. It is good and proper to uphold the traditional value that marriage is only for heterosexual couples and is the preferable relationship in which to bear, raise and rear children, and that it is right and proper for society to make and enforce laws that promote this lifestyle. This is not a bigoted position; it is loving; it is in the best interest of children and of our whole society; and it is supported by scientific and historical evidence.13
The Washington Post has gone on record condemning a federal marriage amendment, arguing that it would debase the Constitution. The Washington Post, February 25, 2004. This is a specious argument. There would be nothing debasing about such an amendment. As pointed out, above, for forty years the Supreme Court has gradually pre-empted the states from legislating the basic incidents of marriage--in effect divesting the states of the authority to define and control marriage. If a majority of three-quarters of the states ratified the Federal Marriage Amendment, this would not debase the Constitution. Such an amendment would merely be an act of the people to take back from the Supreme Court an area of the law that the Court had usurped from the states. Any "debasing" that occurred, was done by the Supreme Court in failing to exercise judicial restraint and by its judicial legislating of various aspects of marriage for forty years. A federal marriage amendment would only serve to correct some of this usurpation.
The nation is ready for a full debate of a federal marriage amendment. It could be valuable in reigning in maverick judges, such as the majority of the Massachusetts Supreme Court. It would block radical judges around the country from mischief by attempting to establish gay marriage in defiance of established law. It would support the important societal value of reserving marriage for prospective father-mother couples who can give their children the blessing of being raised by both a father and a mother.
1. The majority stated that "the State's action confers an official stamp of approval on the destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships." 72 U.S. Law Week, at 1307. The majority based its ruling on Romer v. Evans, 517 U.S. 620 (1996), in which the Supreme Court struck down a Colorado amendment to its constitution which would have prohibited that state from ever making homosexuals a protected class. The Massachusetts Courts misinterpreted Romer, basically turning a shield into a sword. The Court ruled in Romer that although Colorado did not have to make homosexuals a protected class, the State could not amend its constitution to provide that it could homosexuals could never be made a protected class. This distinction was lost on the Massachusetts Supreme Court. Romer was never intended to require any state to recognize same-sex marriages. The Massachusetts Court has implicitly adopted the point of view that the two sexes must be treated absolutely equal. The U. S. Constitution does not require this. This is an argument that might have had some validity if the Equal Rights Amendment (ERA) had been ratified. But one of the reasons that proposed amendment was not ratified by sufficient states was because of the concern that it would lay the groundwork to eliminate all the legal bases for distinguishing men from women. Thus, while the nation wanted more rights for women, including equal pay for equal work, the nation rejected the notion that men and women should be equal and interchangeable in marriage laws. The Equal Protection Clause was not intended and has never been interpreted by the Supreme Court to mandate the extremist view that the Massachusetts Supreme Court has now embraced.
2. A gay couple from Maryland was one of those who sped to San Francisco to get in on the action. The Washington Post, February 20, 2004.
3. The Bush administration first announced this initiative in 2002, and its purpose was not directed at the same-sex marriage issue. The plan is to promote two-parent families and to discourage parents from having children out-of-wedlock. The administration believes that strengthening the traditional family is a good way to reduce many social ills, including crime and poverty. The Washington Times, January 15, 2004; and Matt Daniels, "Marriage, Society--Building Blocks for Both," The Washington Times, April 15, 2004.
4. Congress passed the DOMA in response to a ruling by the Hawaii Supreme Court that recognized same-sex marriages. (Subsequently, an Alaska court made a similar ruling.) By large majorities in the House (342-67) and in the Senate (84-14) Congress passed, and President Clinton signed the DOMA in 1996. Subsequently, Hawaii amended its constitution to specifically prohibit same-sex marriage. Currently 38 states specifically prohibit same-sex marriages. The Washington Times, February 25, 2004; and John Leo, "Judicial End-Run," The Washington Times, November 27, 2003.
5. 70% of the people of Massachusetts oppose legalizing homosexual unions. Armstrong Williams, "Marriage Rites and Civil Rights," The Washington Times, February 2004.
6. It states: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution or the constitution of any State, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." The Washington Times, February 25, 2004.
7. The Washington Times, February 25, 2004.
8. Recent polls by "The New York Times" and CBS News and one by "USA Today" and CNN all found that more than 60% of Americans oppose legalizing homosexual unions. Armstrong Williams, "Marriage Rites and Civil Rights," The Washington Times, February 2004.
9. Conservative commentator Morton Kondracke opposes amending the Constitution with a federal marriage amendment. He compares such an amendment with the national mistake of attempting to enforce a certain level of morality through Prohibition. The Washington Times, February 19, 2004.
10. Steny H. Hoyer (D-Md.), House Minority Whip, The Washington Post, February 25, 2004.
11. Senator Edward M. Kennedy (D-Mass.), The Washington Post, February 25, 2004.
12. Maggie Gallagher, "Are You a Bigot?" The Washington Times, March 5, 2004.
13. The bias accusation is founded on the false assumption (albeit a widely held view) about the nature of individuals who experience erotic, same-sex attraction. The false assumption is that these people are born that way and that they cannot change. But scientific studies do not support this belief. Scientific studies have found no causative genetic link; rather they have proven that behavior and environment are key causative factors; and studies have shown that some people can and do change. Some of these studies are cited in C. Paul Smith, "Creating Special Rights for Gays Threatens America," CLU I:i (April 2001) and in a reprint of a letter to the Frederick County Human Relations Commission in CLU III:ii (September 2003).
© 2006 C. Paul Smith
Contact the Web Master, Jimmy Smith, at jrs76@hotmail.com
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Contact the Web Master, Jimmy Smith, at jrs76@hotmail.com
or visit his website at www.jimmyandheather.com