In
1996, Senator John Kerry was one of only 14 senators, all
of them Democrats, to oppose passage of the Defense of Marriage
Act (DOMA). The bill was unnecessary, he said, since "no
State has adopted same-sex marriage." Well, the future
is now, and Sen. Kerry's own state of Massachusetts is leading
the way. Last November, in its Goodridge v. Dept.
of Public Health decision, the Supreme Judicial Court
of Massachusetts declared same-sex marriage to be the policy
of the commonwealth. Today, same-sex-married couples live
in 46 states and activists are implementing a well-funded,
multifaceted, and highly coordinated legal assault on traditional
marriage. The inescapable conclusion is that, absent an amendment
to the U.S. Constitution, same-sex marriage is coming whether
you like it or not.
Next
week, the Senate will vote on a Federal Marriage Amendment.
In a series of hearings in several different Senate committees,
witness after witness confirmed what the American people already
know. Traditional marriage is the single best arrangement
for raising children and forming citizens. For that reason,
government may certainly select this time-proven institution
for special preference and protection and a high burden exists
for those who would introduce radical and untested substitutes.
And it should be the American people who make such choices,
not judges imposing their own preferences without the people's
consent.
The Legal Road to Same-Sex Marriage
"[W]e
need well chosen, carefully mounted cases."
— Evan Wolfson, executive director, Freedom to Marry
When allowed to choose, legislatures protect marriage rather
than dismantle it. Therefore, advocates of same-sex marriage
resort to strategies involving the executive or judicial branches.
In states such as California, Oregon, New York, and New Mexico,
rogue local officials have simply defied their own state marriage
laws and married thousands of same-sex couples. While saying
that New York law does not allow same-marriages, state attorney
general Eliot Spitzer has promised that he will nonetheless
recognize same-sex marriages from other states.
But
in most cases, advocates turn to the courts to impose their
preferred policies on their fellow citizens, and their legal
war against traditional marriage has at least five fronts.
First, nearly a dozen states so far face state constitutional
challenges to their traditional laws limiting marriage to
a man and a woman. It doesn't matter whether the people have
expressed themselves directly or through their legislatures.
In California, even though 60 percent of voters recently approved
a statewide ballot initiative to maintain traditional marriage,
the California supreme court is now considering the constitutionality
of that democratic action. In Nebraska, the American Civil
Liberties Union has challenged a duly passed state constitutional
amendment that defines marriage as between a man and a woman.
Second, there will likely be a federal court challenge to
state marriage laws, similar to the challenges that have eliminated
state laws against certain sexual activity.
Third,
a federal lawsuit in Florida is challenging DOMA's traditional
definition of marriage for purposes of federal benefits.
Fourth,
same-sex couples from across America who obtained marriage
licenses in places such as San Francisco and Massachusetts
have gone home and will try to change their home-state's policy
by forcing it to recognize their union. They will cite the
Constitution's requirement that states give "full faith
and credit" to other states' judicial proceedings.
And
fifth, look for lawsuits should states refuse to recognize
these imported unions by citing their own opposition to same-sex
marriage or DOMA's protection against recognizing non-traditional
unions from other states.
Most Americans probably assume they and their elected representatives
can continue making policy decisions about marriage as they
have in the past. After all, 40 states have recently taken
some step to further protect marriage. Not surprisingly, the
popular response to Goodridge and its aftermath resembles
the decision itself: confused and conflicted. Americans clearly
support traditional marriage, but do not readily see how a
court decision in Massachusetts affects them in Nebraska,
Arizona, or West Virginia. While the American people should
be able to protect marriage through ordinary legislation,
the multi-front legal assault is poised to strip away this
right to self-government. The only solution left is to amend
the United States Constitution.
The Supposedly Conservative Case Against an Amendment
This
conclusion has been challenged by a few conservative-sounding
arguments. Coming as they do primarily from legislators and
other advocates who not only tolerate, but actually embrace,
repeated judicial amendments to the Constitution, this
sudden resistance to popular amendments must be taken
with at least a grain of salt.
Some
say that the Constitution, which has seen only 27 amendments
in 217 years, should not be tinkered with. Patrick Guerriero
of the Log Cabin Republicans insists that we should not "ignore
the important business pending before the United States Senate
in order to play politics with our nation's founding document."
Apart from the fact that the Senate is indeed handling the
other important business, this argument begs questions rather
than answers them. Activist lawyers and judges have forced
this issue onto the national agenda. It isn't "playing
politics" with the Constitution when an amendment has
become the only available means of addressing this crisis.
Next,
we hear from newly baptized federalists in the Democratic
party. Senator Russ Feingold, for example, argues that "states
should...be permitted to handle this issue as their citizens
see fit...in accord with the founding principles of our nation."
While that is the way states addressed issues such as marriage
policy in the past, the legal assault on marriage will deny
this right to the states. And if the full-faith-and-credit
strategy works, the Supreme Judicial Court of Massachusetts
will ultimately have determined this issue for citizens of
non-consenting states, hardly a move respectful of federalism.
Democrats, who rarely meet an expansion of national power
they don't like, must know that by opposing a constitutional
amendment to protect marriage, judges will continue imposing
same-sex marriage over the will of the people.
Finally,
the organized opponents of the Federal Marriage Amendment
(FMA) contend that it is premature. After all, they say, the
Defense of Marriage Act (DOMA), which protects states from
having same-sex marriage imposed by the judges of other states,
remains the law of the land. Senator Edward Kennedy, also
of Massachusetts, claims that "no state will be bound
by the rulings or laws on same-sex marriages in any other
state." Senator Kennedy is another who opposed DOMA but
now claims it is sufficient. He and other advocates of same-sex
marriage also argue, however, that the very precedents supposedly
protecting states' ability to set their own marriage policy
should be struck down in the courts.
These
arguments, and others likely invented in the future, are all
designed to let the clock run out. By preventing any substantive
protection for marriage, advocates of radical changes in family
structure hope to buy time for the legal warriors to gain
more ground. By that time, especially should the U.S. Supreme
Court rule that same-sex marriage is the law of the land,
these same advocates will switch gears and oppose an amendment
because it would take away the "right" created by
judicial fiat.
After
Goodridge, which itself came on the heels of the U.S.
Supreme Court declaring a constitutional right to individual
sexual autonomy, the choice is no longer between amending
the Constitution or leaving this issue to the states. The
only choice is between popular resolution of the effort to
protect traditional marriage or judicial resolution of this
question in favor of same-sex marriage. In the face of this
threat, it is flatly irresponsible for elected officials,
sworn to uphold the Constitution, to sit idly by as courts
corrupt our national charter and advance a social experiment
explicitly rejected in state after state, and in every region
of the country.
DOMA's False Sense of Security
"DOMA
does violence to the spirit and letter of the Constitution."
— Senator John Kerry
The Advocate," September 3, 1996
"The Defense of Marriage Act is the law of the land today."
— Senator John Kerry, February 26, 2004
The
very people who said in 1996 that DOMA is unconstitutional
tell us today that DOMA is good law, solid enough to protect
marriage without amending the Constitution. While this legislative
protection should be enough, recent court rulings and other
developments have convinced most analysts — either grudgingly
or enthusiastically — that the DOMA solution will not last.
States
such as Louisiana, South Dakota, West Virginia, and Nebraska
have all acted to protect traditional marriage, but each of
those states now has same-sex resident couples who were married
in another state. Will those marriages be recognized or dissolved?
DOMA sought to provide the states with a blanket right to
refuse recognition of same-sex unions. The Goodridge
decision, however, exposes its potential deficiencies. First,
a court could conclude that, even though the Constitution
gives Congress a role, it may not go as far as it did in DOMA.
When DOMA was passed, Harvard law professor Laurence Tribe
expressed the "unequivocal" conclusion that "Congress
possesses no power under any provision of the Constitution
to legislate [as it does in DOMA] any such categorical exemption
from the Full Faith and Credit Clause of Article IV."
Second,
without DOMA, states will have to justify their refusal to
recognize same-sex marriages performed elsewhere. On this
point, the deck is already stacked against them. In Lawrence
v. Texas, the Supreme Court found that "our laws
and tradition afford constitutional protection to personal
decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education."
The more fundamental the choice or "right," the
more significant the government's reason must be to limit
it. Several years earlier, in Romer v. Evans,
the justices had already concluded that denying absolute equality
to homosexuals is merely "irrational animus" toward
that group.
The
Goodridge judges cited these precedents when they imposed
same-sex marriage on the people of Massachusetts. With DOMA
likely to be overturned, the Supreme Court will have no obstacles
to imposing this policy experiment on the people of every
state. If the American people are to exercise their right
to choose on this matter, a constitutional amendment is absolutely
necessary.
Maintaining the Peoples' Constitution
"The
candid citizen must confess that if the policy of the government
upon vital questions affecting the whole people is to be irrevocably
fixed by decisions of the Supreme Court...the people will
have ceased to be their own rulers."
— Abraham Lincoln, March 4, 1861
To
permit a handful of liberal judges to force this radical change
on the entire nation is wholly inconsistent with the right
of people to govern themselves. This debate over same-sex
marriage is fundamentally a question of who decides important
matters of public policy in a constitutional democracy. Judges
who usurp the role of legislatures by imposing their preferred
policies on the people dramatically undermine democracy's
vitality and legitimacy. I fear that we have lost sight of
this fundamental principle.
As
a senator, my oath of office requires me to defend the Constitution
and the system of government it established. That oath means
supporting the only solution to this crisis that threatens
to undermine not only the vital institution of marriage, but
the fundamentals of democracy as well. Protecting marriage
requires amending the U.S. Constitution because we simply
cannot wait for, or tolerate, further judicial corruption
of both marriage and the Constitution. As our experiences
with abortion, criminal rights, and religious liberty demonstrate,
it is nearly impossible to correct Supreme Court decisions
once made. "We the people" established the Constitution,
but if we leave this issue to the courts, same-sex marriage
will be here to stay whether we like it or not.
Our
opponents' objection that the Constitution has always been
amended to extend rights tells only half the story. The Constitution's
amendments have generally served to extend the right of citizens
to govern themselves, and to be able to make final decisions
on issues such as marriage. The people in the states have
already spoken on this issue, and the FMA will protect their
fundamental right to democratic self-government — a right
being eroded by an unaccountable judiciary.
For
a simple and compelling reason, traditional marriage has been
the norm in every political community for 5,000 years. Society
has an interest in the future generations created by men and
women. Decoupling procreation from marriage in order to make
some people feel more accepted denies the very purpose of
marriage itself. And such a radical transformation should
not be imposed by judges upon people who would not choose
it for themselves. Yet absent a constitutional amendment,
that is precisely what we face.
This
article originally appeared in National
Review Online and is posted with their permission.
