Skip to comments.Marriage and the Constitution: Why We Need an Amendment
Posted on 03/23/2004 3:31:35 PM PST by Spiff
By Professor Richard G. Wilkins
I am one of the few constitutional law professors in the country who actually reads the Constitution. I even read it to my students. I exhort them to study and understand the intent of the Framers of the Constitution. I insist upon a strict construction of the document and praise the brilliant political structure it creates.
If anyone would have told me, ten years ago, that I would support amending the Constitution to include a definition of marriage, I would have laughed out loud. I would have become quite animated in explaining the foolishness of the proposal (I am not known for a calm demeanor on constitutional questions).
Ten years ago, I would have explained that amending the Constitution to define marriage is clearly wrong for at least three important reasons. First, the Constitution says nothing about marriage; why should that change? Second, marriage is a question the Constitution wisely leaves to the people within their respective states; why change that? Third, and finally, the last thing America needs is more powerful federal courts; why tempt the judges by inserting a new topic into the Constitution?
But that was then. And this is now.
Now, when I hear devotees of the Constitution repeat arguments that are almost a part of my DNA, I shake my head in disbelief. The very concerns that, ten years ago, would have prompted my opposition to a marriage amendment now compel my support.
The Constitution says nothing about marriage.
Quite true. But the judges have.
The Supreme Court this past summer in Lawrence v. Texas gave us an entirely new Constitution that, for the first time in history, prohibits state legislatures from treating homosexuality any differently than heterosexuality. What does this new Constitution do to marriage? The Massachusetts Supreme Judicial Court answered that question: relying on Lawrence, the Massachusetts court has ordered same-sex marriage.
The Constitution now says a lot about marriage. (Just interview the mayor of San Francisco. Why did he issue marriage licenses not authorized by California law? The Constitution demands it, he said.)
Marriage is a question the Constitution wisely leaves to the people to decide in their respective states.
Again, quite true. And again the judges have taken that power away.
Does the Massachusetts legislature have any say in who can get married? Indeed, can the legislature even timidly suggest that it give a different name (like civil union) to state-recognized unions of homosexual couples? No, say the courts. After all, the Constitution (as construed in Lawrence) forbids states from treating homosexuals any differently than heterosexuals.
The Constitution now takes away the power of the people to decide questions relating to marriage and marital law. (Just ask the Massachusetts legislature.)
The last thing America needs is more powerful federal courts.
Yet again, quite true. But by now the judges are laughing.
The United States Supreme Court has demonstrated that it is capable of transcending not only the wording of the Constitution but the history, traditions and actual practices of the American people. Even though the Constitution says nothing about sexual liberty; even though the history, traditions and actual practices of the American people do not support an unrestrained right for consenting adults to engage in any kind of sex they want; the Court has created this very right out of thin air. Lawrence created this right, not by relying upon the wording of the Constitution or the traditions and practices of American society, but by invoking (and I am not making this up) the meaning of life and mysteries of the universe.
The judges are now so powerful that they feel free to invent the Constitution as they move along. (If the definition of marriage an understanding as old as time violates constitutional strictures, one wonders what centuries old legal notions the mysteries of the universe will invalidate next.)
In light of these astonishing developments, it is absolutely clear why so many people are putting the words marriage and constitution in the same sentence. An amendment is necessary to preserve not only the social viability of marriage, but the political integrity of the Constitution.
Dont get me wrong. I fully understand the concerns and arguments of those who assert that the Constitution must not be amended lightly. But just what about the Constitution and marriage is so pristine that it must not be touched? That the Constitution, once upon a time, didnt say anything about marriage? That the Constitution, once upon a time, left marriage to the states? That some day, and thereafter happily ever after, the judges will once again read the Constitution and tie it to the actual history, traditions and practices of the American people?
Precisely who is taking the Constitution lightly? The judges. And that is why the people must amend it.
An amendment on marriage will go a long way toward restoring constitutional order. An amendment on marriage will not do everything that should be done to instill a proper respect for the Constitution. But it will do at least two vital things. An amendment will restore the crucial understanding that our government operates under a written Constitution. And, by forcibly demonstrating to the judges that they have gone much too far in interpreting the Constitution, an amendment will restore the proper balance of power between the judiciary and the representative branches of government.
1. A Constitutional amendment will restore the crucial understanding that American government operates under a written Constitution.
As Chief Justice John Marshall noted in the famous decision of Marbury v. Madison in 1803, America is governed by a written constitution and the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. (Emphasis by Justice Marshall.) Because the Constitution binds the courts as well as any other branch of government, judges should adhere to the text of the Constitution and interpret and apply its terms consistently with the traditions, history and actual practices of the American people. Any other course, as Chief Justice Marshall noted in Marbury, would subvert the very foundation of all written constitutions.
Modern courts have dangerously ignored the teachings of Marbury.
The new Constitution, announced by the Supreme Court in Lawrence, frees judges from any need to tie their decisions to either the words of the Constitution or the traditions, history and actual practices of the American people. Many people applaud the idea of a living Constitution; a document that transcends words, definitions and the restrictive bonds of history and tradition. But a document as fluid, unfettered and free as the new Constitution unveiled in Lawrence bears little resemblance to the Constitution that, for most of its 215-year history, has demanded that the people (and not the courts) resolve societys controversial moral and social debates.
Under the new Constitution announced in Lawrence, the more divisive, difficult and debatable the controversy, the more likely it is that a court rather than a legislature will settle the matter. Why? Because (according to the judges, the law professors and other elites) the meaning of life and the mysteries of the universe become more and more important as social debates become more and more divisive, difficult and debatable.
Of course, this is not the Constitution the Framers intended. It is not what the written text demands. But it is what the courts have now decreed.
We need an amendment on marriage, not only to protect marriage, but to demonstrate to the courts that they exceeded their power in constitutionalizing marriage in the first place.
Modern courts feel free to ignore or alter constitutional text at will. A constitutional amendment on marriage, by forcefully rejecting the judges latest excursion from constitutional text and history, will forcibly (and quite properly) remind the judges that their role is to adjudicate, not legislate. A constitutional amendment is necessary to revive the idea which provides the very foundation of all written constitutions; that is, that the Constitution is a rule for the government of courts, as well as of the legislature. Marbury v. Madison (emphasis in original).
2. A constitutional amendment will restore the proper balance of power between the judiciary and the representative branches of government.
Under the new Constitution drafted by the Supreme Court in Lawrence, state legislatures may not demean the sexual practices of consenting adults that are closely connected to individual views regarding the meaning of life and mysteries of the universe. (For those of you who either arent familiar with legal lingo or simply like people to write clearly: legislatures may not suggest that there are any differences between heterosexuality and homosexuality.) To reach this result, of course, the Supreme Court had to ignore the words of the Constitution and the history and traditions of the American people. In their place, the Justices have given us a poem a poem as vague, expansive or restrictive as the next metaphor or lyrical couplet favored by five members of the Supreme Court.
This departure from text, history and tradition is a serious matter. It dramatically upsets the proper balance of power between the judiciary and the representative branches of government.
If government action encroaches upon core constitutional values (as contained in clear constitutional text construed in light of actual American practice, experience and tradition) the judiciary must act. But the Founders intended the judicial role to be exceptional and rarely invoked. Alexander Hamilton, writing in The Federalist Papers, proclaimed the judiciary the least dangerous branch because it does not create policy but merely exercises judgment. The really difficult questions, Hamilton and the other Founders thought, would be left to the people.
Modern social activists (and too many judges) have either forgotten or chosen to ignore that most governmental decisions are not controlled (and cant be controlled) by the precise language of the Constitution. If the correct answers to pressing questions are fairly debatable, those questions must be indeed, can only be resolved by legislative action.
The expanding reach of American constitutional law has rendered the public increasingly oblivious to its role as the primary source of decision-making power under the United States Constitution. By inventing and enforcing rights nowhere evident in the language of the Constitution or the history and traditions of the American people, lawyers, judges and law professors have slowly eroded democratic decision making, reducing or eliminating the peoples popular control over an ever-expanding range of fairly debatable controversies.
The Constitution was not drafted, nor was it intended, to turn over marriage and marital policy to the federal courts. But, because the courts have now concluded otherwise, a constitutional amendment is needed to restore democratic balance. Without a constitutional amendment, the Supreme Court and not the people ultimately will determine what marriage means. With all due respect to the Honorable Court, this is too important a decision to be made by five people in black robes.
What does the Constitution demand?
I end this essay where I began. I do take the Constitution seriously. I look to the intent of the Framers, and I sincerely believe in the political structure created by the Constitution. I wish with all my heart that it was not necessary to even think about putting marriage in the Constitution. I wish that I could rest secure in the knowledge that marriage, like other important topics vital to the health and social welfare of the American republic, was left to the sound judgment of local legislatures supervised by a prudent, careful and principled judiciary.
I fully understand the concerns of those who assert that, since the Constitution has never addressed marriage before, it should not be amended to address marriage now.
But whatever the Constitution said (or did not say) about marriage for the past 215 years, whatever the history, traditions and practices of the American people confirm (or do not confirm) about the meaning of marriage, marriage is in the Constitution. The Founders did not do it. But the courts have.
By placing marriage in the Constitution, the judges have taken marriage out of the hands of the people. The judges have done violence to the very idea of a written Constitution, have eroded legislative power, and have significantly expanded their own power. It is now up to the people, by constitutional amendment, to remedy these errors.
A constitutional amendment is needed, not only to preserve marriage, but to restore constitutional order.
I'm laying a big wager on the Right to Keep and Bear Arms.
The main difference, though, between eviscerating the concept of marriage and doing the same to people's RKBA is that in the latter there will have to be some kind of mechanism to enforce that decree and actually confiscate property from people. Oh, and BTW, it just so happens that this particular property is uniquely suited to, shall we say, "confounding" just such an effort.
The exact opposite can and will happen whenever the political winds change. The reason for a Constitutional amendment is to make certain that the law doesn't change so rapidly. A society with no definite laws is an anarchy, and since people inherently don't like to live in such a state, then such a society would be ripe for a dictator or oligarchy.
Which would just lock in super-power status for state courts.
We need a solution that will restore representative government, and we need a uniform definition of marriage. Federal benefits and taxes rely on the definition of marriage. Also, the SCOTUS has made it a federal issue with their Lawrence decision in which they mentioned marriage, thereby aiding the Massachusett's high court decision mandating gay marriage.
It shouldn't have come to this. It shouldn't be necessary. But it's not our fault. Blame the judges.
This article says it better than I:
A Shotgun Amendment (Why We Need An Amendment To The Constitution In Respect To Marriage)
Wall Street Journal ^ | 10 March 2004 | EDWIN MEESE III
Hasty marriage seldom proveth well," Shakespeare warns.
For thousands of years, every society, and every major religious faith, has held that marriage is a unique relationship by which one man and one woman are joined together for the primary purpose of forming and maintaining a family.
Then along came the Supreme Judicial Court of Massachusetts -- following in the footsteps of a trial court judge in Hawaii, a superior court judge in Alaska, and the Vermont Supreme Court -- proclaiming in Goodridge v. Department of Public Health that marriage is "an evolving paradigm." Traditional marriage is out of step with the times, we're told. It's arbitrary, irrational and inherently discriminatory. The institution must be reformulated to accommodate homosexual couples that are legally entitled to marriage under the Massachusetts state constitution.
To make this leap forward, the Massachusetts court seized upon a premise dangled before it by the U.S. Supreme Court in Lawrence v. Texas -- that all individuals have a right to "seek autonomy" in their private relationships, including "personal decisions relating to marriage."
Perhaps this isn't what the Supreme Court intended, but what advocates of same-sex marriage have in mind is clear: to deconstruct marriage, in the name of an invented right, so that it includes and publicly affirms homosexual unions.
In light of such vast claims and harsh language, is it any wonder what is happening? With an air of defiance, from San Francisco to New Paltz, N.Y., and from Sandoval County, N.M., back to Multnomah County, Ore., local officials are actively violating the law in order to catch the perceived wave of social progress sweeping the nation.
Should Americans, renowned for their live-and-let-live spirit, care?
We ought to be disturbed when judges circumvent the lawmaking process and assume the powers of legislating. We also should be troubled by the ease with which these judges are willing to discard clear laws and legislative intent because it fails their perception of rationality. Constitutional government is threatened when judges alter the definition of things and reinterpret duly approved laws in order to achieve their own policy preferences.
But even worse than the way the courts are making these decisions is the substance of what they are dictating. Think about what's at stake. The basic unit of society is the family, but the cornerstone of the family is marriage. The essence of marriage is the union of man and woman as husband and wife. This unique association provides social, economic and health benefits for children and adults. It brings significant stability, continuity and meaning to society, transferring basic cultural knowledge and civilization to future generations.
To redefine marriage so that it is not intrinsically related to the relationship between fathers, mothers and children undermines the institution by separating it from its very nature and purpose. President Bush put it this way: "Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society."
There is "an overwhelming consensus in our country," as President Bush observed, that marriage is between a man and a woman. If opinion polls are any guide, most Americans understand that this is not just a shouting match over living arrangements.
But do we need to amend the Constitution? One's first reaction is to hesitate. No state formally has legalized homosexual marriage, and, as a result, there is no case that threatens to force the issue on other states or the nation. There is as yet no challenge to the federal Defense of Marriage Act of 1996. These battles lie ahead, and each will be important.
Legal certainty, however, is not the standard of political judgment. The Defense of Marriage Act might stand constitutional scrutiny -- but it might not. Regardless, it does not protect the nation from state judges like those in Massachusetts who insist on same-sex marriage by misconstruing their state constitutions. Nor does it address the legal anarchy that now abounds. A constitutional amendment is the only sure and democratic way to stop activist judges from imposing their will on the people.
But do we need to define marriage in the Constitution, making national what has always been the province of the states? Again, the first instinct is to say no.
In our system of law, the powers of government are divided between the federal and state governments. The framers rightly left marriage policy -- as so many other things -- with the states.
Yet this is not a matter for state-by-state experimentation. Society isn't harmed when high-tax states live side by side with low-tax states. The market adjusts to the inconsistency. Not so with marriage. A highly integrated society such as ours -- with questions of property ownership, tax and economic liability, and inheritance and child custody crossing state lines -- requires a uniform definition of marriage.
In a free society, certain fundamental questions must be addressed and settled for the good of that society. States can't impair the obligation of contracts, or coin their own money, or experiment with forms of non-republican government. We learned the hard way that the nation could not endure half slave and half free.
If marriage is a fundamental social institution, then it's fundamental for all of society. As such, it is not only reasonable but obligatory that it be preferred and defended in the law -- and, if necessary, protected in the U. S. Constitution.
This doesn't mean that marriage must be completely nationalized or should become the regulatory responsibility of the federal government. Policy decisions concerning questions such as degrees of consanguinity, the age of consent and the rules of divorce should remain with the states.
But we must protect the integrity of the institution as such by defining the societal boundaries and determining the limits beyond which no part of society can go.
A constitutional amendment that defines marriage would protect the states' capacity to regulate marriage by sustaining it as an institution. In order to guard the states' liberty to determine marriage policy in accord with the principles of federalism, society as a whole must prevent the institution itself from being redefined out of existence or abolished altogether.
Let's not fool ourselves: it is extremely difficult to amend the Constitution. The framers, in their wisdom, made it hard -- precisely to assure that any changes were important enough to have broad-based support among the American people and in the states.
The question comes down to this: Is marriage sufficiently important to protect in the U.S. Constitution?
If the correct answer to this question is yes, then we should take that fact, and not political expediency, as our principled starting point.
The very consideration of an amendment that focuses on marriage would be an important vehicle for a nationwide debate about the nature, purpose and legal status of the institution of marriage. States are already strengthening their laws, passing state defense of marriage acts and considering state constitutional amendments -- all of which should be encouraged. A meaningful national conversation about an amendment to defend marriage will further this process and become the centerpiece of a larger and longer-term effort to promote and strengthen marriage and the family.
The defenders of marriage did not choose this debate or force this issue on the nation. Americans are a wonderfully tolerant and very reasonable people. But the issue having been joined, and the decision having been forced, we must now act on our basic principles and deepest convictions -- to preserve constitutional government and protect marriage.
Mr. Meese, a former U.S. attorney general, is chairman of the Center for Legal and Judicial Studies at the Heritage Foundation. He was assisted in writing this piece by Matthew Spalding, director of Heritage's B. Kenneth Simon Center for American Studies.
Fortunately, there is strong evidence that the younger generation of Mormons sees the hypocrisy and isn't buying into it, as evidenced by a number of recent letters to editor of the BYU student newspaper (similar to the positions taken by the Baylor student newspaper editor, and letter writers, who also clearly see the need for distinction between one's own religious beliefs, and what one should advocate having codified into law). The best of the BYU letters dug up a quote from an early LDS Church publication, the Millennial Star, in which the then President/Prophet of the Church railed against the evils of monogamous marriage:
MORMONS HAD WEIRD MARRIAGE CUSTOMS TOO
I found it interesting to see a recent author resorted to accusing Jennie Hyde of being under the influence of Satan for her seemingly reasonable position regarding same-sex marriage in the recent letters to the editor on gay marriage. As Jennie correctly points out, as Mormons we are in no position to attack unconventional marriages when our early leaders themselves had no qualms about engaging in marriage practices that the culture of that time found distasteful.
The religious rhetoric used to justify banning same-sex marriages is eerily familiar to statements from 19th century church leaders, who likewise blamed the downfall of earlier civilizations on marriage practices. Then, however, it was not same-sex unions that were blamed but heterosexual monogamy!
President John Taylor stated that "the one-wife system not only degenerates the human family both physically and intellectually, but it is entirely incompatible with philosophical notions of immortality; it is a lure to temptation and has always proved a curse to a people" (Millennial Star, Vol. 15, p.227). Brigham Young and Orson Pratt expressed similar sentiments.
The author fails to provide a reasonable explanation of how the sanctity of heterosexual relationships is threatened by same-sex marriages. Her justification that it presents a bad example for our children is not adequate. By similar reasoning, one could argue that we as a church should push for legislation that outlaws coffee, NFL football games on the Sabbath, and Bay Watch!
As a community, I feel that it would behoove us to show a little more introspection, tolerance, and compassion.
Can't say I approve of black men marrying white women as well.
We can do it the easy way, or the hard way - the courts have set in motion the possibility of the greatest period of civil unrest since the first Civil War; if not held in check, the next such disturbance will be catastrophic. The point of this article is well put: either the Constitution and NOT the courts means something solid and substantial, or we will make our own rules as we go along; and you can bet the farm that things are going to get very messy, indeed, in that process. People are only going to take so much BS and then, BOOM!.
A marriage amendment is necessary to the preservation of marriage.
It may not be adequate to you or the author but it is more than adequate for a large majority of America.
By similar reasoning, one could argue that we as a church should push for legislation that outlaws coffee, NFL football games on the Sabbath, and Bay Watch!
Not worth commenting on.
As a community, I feel that it would behoove us to show a little more introspection, tolerance, and compassion.
As a nation we have shown introspection, tolerance and compassions. We draw the line at worshipping sodomy and having unelected courts demand we encourage defects in behavior or birth.
For the same reason I don't wait until the horse is out of the barn to close the gate. I didn't start the battle Biker but I sure the heck ain't backing down from it.
Do not kid yourself, the gays and liberals do not want same sex marriage for economic benefit. They want moral equality and nothing less. The economic benefits are a smokescreen, and they drew you in, just like the lawyers want to draw the Judges in. The attack on our system is relentless, and because of the apathy of most voters, a Constitutional Amendment is the only alternative.
The Brady Boob is right about one thing: no court has ever overturned a gun law based on the 2nd Amendment, and its unlikely that one ever will. The last ten years has demonstrated that in spades. Even relatively good rulings have still upheld the laws in question. That certainly is true for Emerson, and it sure as hell was true for Silviera. In the latter, the damn 9th Circuit actually said, in dicta, that there is NO individual right to keep and bear.
The legal building blocks are already in place; all it will take is for the Congress or one state legislature to declare all gun ownership illegal and order a mass turn-in. The level of compliance will be interesting; states like California have a complete database of pistol sales since 1989; in addition, there are around 30,000 registered "assault weapons" in another database. It would be expensive to pay enough people (even local law enforcement) to go around and collect all these arms. Its a good bet that the 4th and 5th Amendments would have to be suspended for such an event to take place. That would put the likes of the anti-gun ACLU in a difficult postion - one full of irony.
Marriage is a national issue. If, like me, one supports marriage as an institution between a man and a woman, then I, albeit reluctantly and after much thought, am forced to support and campaign for the FMA.
SCOTUS will not allow married homosexuals in Massachusetts to be treated differently than civil union homosexuals in Georgia where federal largesse or duties are concerned. Nor should they if they are faithful to the Constitution as written. It is quite clear.
Equal protection under the law.
They do not ignore the plain language, they see language that doesn't exist. It's a penumbra thing.
Ignoring plain language is grounds for impeachment, waxing poetically about "transcendent liberty" is not.
We now know that no fault was bad public policy resulting in more government to substitute for one of the parents. Redefining marriage is again bad public policy and the evidence in Scandanavia suggests rather strongly a further erosion of the institution of marriage and rising levels of out of wedlock births resulting in even more government.
So justifying more bad public policy based on bad public policy is not a persuasive argument nor does it say anything about the institution of marriage. It says much about bad public policy.
Again, your argument is simply that bad public policy justifies bad public policy. It is not an argument for redefining the word marriage.
You also mistake defeat for acquiesence. We lost the battle on no fault (bigger government won), the culture war continues.
As for your suggestions, sounds like a plan to me.
And as for your laughs, it is the same attitude I encountered many years ago when arguing that Roe and Doe would be a license to kill. That battle continues as well.
I am arguing from the view point of limited government.
I'd be happy to argue objective truth and morality if you'd like.
Marriage for all 228 years of this Republic has been defined as a man and a woman. Utah was not allowed into the union until they banned polygamy. In other words, the history of the law in the US is that one man, one woman equals marriage.
If you want to change that definition then you must present at a minimum, a preponerance of the evidence suggesting it enahnces the Republic and the institution of marriage.
In a word... BULL!
This IS about homosexual couples receiving the same benefits MARRIED heterosexual couples receive. If it were otherwise, this would have been an issue when the "marriage tax" penalty was still in force.
Get the government, at all levels OUT OF MARRIAGE.