The Marriage Amendment
Constitutional issues.

By Jonathan Rauch, Andrew Sullivan & NR's editors
July 23, 2001 Issue

n the July 23 issue, the editors ("In Need of Amendment") and Robert P. George ("The 28th Amendment") argue for a constitutional amendment banning same-sex marriage. Conservatives ought to think harder before heading down this path. Same-sex marriage is not only good policy, it is good conservative policy.

Conservatives know the importance of long-term, committed relationships for both individual happiness and social stability. They understand that no other form of commitment can touch the durability and depth of marriage. They realize that opposite-sex marriage is not an option for homosexuals. So why not draw homosexuals into the embrace of marriage, with all its benefits? Because, says George, same-sex marriage would wreck the institution.

Neither George nor the editors offer argument or evidence to support this essential claim. The closest they come is George's flat assertion that marriage "is intelligible and defensible as a one-flesh union whose character and value give a man and a woman moral reasons" to pledge fidelity and permanence. But that, of course, is nothing more than a tautology: Same-sex marriage can't be marriage because it's same-sex.

Actually, same-sex marriage would strengthen marriage by making it a universal and unique aspiration, by signaling that marriage is for everyone, and that all who want the benefits of marriage should get married. Before banning same-sex marriage, George and the editors should consider the likely real-world result: a profusion of partnership benefits and other forms of "lite marriage" that would turn marriage into just another bonbon in a candy box of legal and financial arrangements.

Barring millions of Americans from signing the most ennobling of all pacts — the commitment to love and care for another human being, till death do you part — is not only unjust but unwise, for all the reasons that separating love from marriage has always been unwise. A robust public debate on an amendment banning gay marriage will bring a lot of conservatives around to what is, at bottom, a deeply conservative idea that is also deeply consonant with the American idea.

Jonathan Rauch
Washington, D.C.

'm shocked that National Review, long a defender of constitutional conservatism, should have so blithely supported such an anticonservative notion as this constitutional amendment. Such amendments should not be rashly considered, let alone rashly endorsed. This is particularly true of an amendment that tramples on any notion of federalism, that egregiously violates states' rights, and that seeks to impose a uniform settlement on an entire country in perpetuity. The amendment is more typical of the excesses of modern liberalism than anything vaguely conservative.

In the United States, marriage is now, and has always been, a state matter. The federal government and the Constitution have no role in this area — as a matter of history and as a matter of law. Even during the ordeal of the battle over miscegenation laws, the federal government never intervened to impose a settlement on the states as they fought among themselves about who had a right to marry and who did not. This long and settled constitutional practice with regard to marriage was trashed in 1996, when the Republican Congress and President Clinton, for nakedly political reasons in an election year, passed the first and last federal law regulating marriage, the Defense of Marriage Act. But even then, that law allowed states that wanted to experiment with same-sex marriage to have a chance to do so.

Since then, two states have dealt with the matter definitively: Hawaii and Vermont. Both states were presented with the issue by the courts. This is not unusual. Important matters of civil rights are often first broached in the courts. In Hawaii, the legislature and voters overruled the court. In Vermont, the legislators and voters backed the court. There was no judicial tyranny. The voters in both states had a chance to deliberate and vote on the matter — and they came to different conclusions. That's the beauty of federalism, as the Founding Fathers recognized. Why, in this instance, can you not return to the true conservative position and recognize it yourselves?

Andrew Sullivan
Washington, D.C.

he editors reply: On the traditional understanding, marriage is an intrinsic good. It is a one-flesh union integrated around acts that are procreative in type: acts, that is, in which a man and woman meet the behavioral requirements of procreation. In these acts, a man and woman achieve an organic unity; they become a single reproductive principle. Such marital acts can bring into being children who participate in the organic community thus created and bring it toward perfection. Because marital unity was traditionally understood to be an intrinsic good, fidelity was held to be obligatory even when one or both of the married parties wished otherwise.

This understanding makes some features of traditional marriage law comprehensible; for example, the fact that sexual acts that are not procreative in type could not consummate a marriage. Note well that this rule applied to heterosexuals; the understanding of marriage that included the rule was not cooked up yesterday for the purpose of excluding homosexuals. But two people of the same sex obviously cannot become one flesh.

Jonathan Rauch seemingly concedes the point, but slights its significance. To say that "same-sex marriage" cannot be marriage because it is same-sex, he writes, is "nothing more than a tautology." Well, yes. An argument about the definition of something always involves tautology.

Professor George has carefully explained and defended the traditional understanding of marriage in several venues — e.g., The Yale Law Journal, The Georgetown Law Journal, and the American Journal of Jurisprudence. He and other philosophical defenders of that understanding have repeatedly put to advocates of same-sex "marriage" a question: If marriage is not to be understood as a one-flesh unity, what grounds of moral principle can there be for rejecting infidelity and other offenses against marital unity? The liberal understanding reduces marriage to an arrangement that is valued, not as an intrinsic good, but merely to the extent that it provides emotional and other satisfactions to couples. (In ruling for same-sex marriage, the Hawaii supreme court went so far in the direction of denying any connection between marriage and reproduction — or even sex — that it held that two heterosexual men could get hitched in order to win legal benefits.)

The liberal understanding allows, at best, only the weakest prudential arguments against infidelity. So far, advocates of same-sex marriage have not even attempted to formulate a principled defense of monogamy. When Andrew Sullivan defends the "spirituality" of sex with strangers, as he did in Salon two years ago, does Rauch have the resources to argue that he is wrong? In any case, we welcome Rauch as an ally in fighting partnership benefits and other policies that would weaken marriage, even as we disagree about whether same-sex marriage falls into that category.

In his own letter, Sullivan attempts to make an argument against a federal marriage amendment based not on the virtues of same-sex marriage but on the virtues of federalism. The attempt is either naïve or disingenuous. He is, in the first place, wrong on his legal history. In the 1967 case of Loving v. Virginia, the Supreme Court — part of the federal government — struck down state prohibitions on interracial marriage as a violation of the Equal Protection Clause of the Constitution. It is a case that Sullivan has himself cited while arguing that laws restricting marriage to heterosexual couples are as odious as miscegenation laws. That comparison — implicit as well in Sullivan's description of same-sex marriage as a "civil rights" imperative — makes us doubt that Sullivan would really oppose a federal settlement on marriage if his side were imposing it.

Which, by the way, it is. As explained both in our editorial and in George's article, the proposed constitutional amendment is designed precisely to thwart a campaign in state and federal courts to impose same-sex marriage nationally. If Sullivan is in principle against the imposition of a national policy, he should come out against the legal strategy being pursued by the same-sex marriage movement of which he is a major spokesman.

Instead, Sullivan ignores the clear import of that strategy. Activists chose to bring their case in Vermont, for example, because it is extremely difficult for voters to amend the state's constitution but easy for judges to do so surreptitiously. Vermont's legislature "backed" the court because under the state constitution it had no effective way to resist; Vermont's people were never given a chance to vote on the subject, and nobody doubts that they would have voted against same-sex unions if they had been.

Sullivan finds nothing objectionable in this procedure. He seems to be arguing that if a state's institutions enable traditionalist voters to overrule the courts, as in Hawaii, that's okay; and if not, as in Vermont, that's okay too. Luckily, America's federalist system gives the people as a whole the same power Hawaii voters had: the power to overrule the judicial class by amending the Constitution. A federal marriage amendment would have several advantages over the national marriage policy we are likely to suffer in its absence. It would be more likely to embody sound moral principles; it would be less radical in character; and it would reflect the consensus of the people rather than the whims of the judges.